Appeal No. EAT/1103/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 November 1997

Before
HIS HONOUR JUDGE PETER CLARK
MRS M E SUNDERLAND JP
MR G H WRIGHT MBE

MR M EARP	APPELLANT

(1) MRS S B’CHINI (2) PARAGON MANUFACTURING LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT	

	JUDGE PETER CLARK:     This is an appeal by Mr Earp, the applicant before the Shrewsbury Industrial Tribunal sitting on 10th July 1997, against that tribunal’s decision to dismiss his complaint of unlawful sex discrimination and victimisation contrary to the Sex Discrimination Act 1975. Extended reasons for that decision are dated 5th August 1997.

	The appellant does not appear and is not represented at this preliminary hearing. However, we have before us a faxed letter from his solicitors dated 26th November asking us to deal with the matter on the basis of the skeleton argument prepared on behalf of the appellant by Mr Robinson of Counsel, and that we have done.

The facts
The appellant commenced employment with the second respondent company, which manufactures circuit boards for the electronics industry on 4th July 1995. It is a small business employing some 20 people at the relevant time.

	In February 1997 he was employed as a flow solder operator. Within his working unit was a fellow employee, the first respondent, Mrs B’Chini; his supervisor was Mrs Allison Jones, and the director responsible for production was a Miss Powner.

	On a day early in February the appellant arrived for work carrying some sweets. A conversation took place between him and Mrs B’Chini and Mrs Jones during which, the tribunal found, Mrs Jones made a gesture indicating an act of masturbation, and Mrs B’Chini called a “wanker”.

	The tribunal found that the appellant objected to any kind abuse and had on occasions complained about the use of swear words on the factory floor. On this occasion, the tribunal found, it was not the appellant who formally complained about the incident involving the two ladies, but rather that Miss Powner became aware of an atmosphere on the shop floor, which led her to arrange a meeting between the ladies, the appellant and herself.

	At the start of the meeting a row erupted between the appellant and Mrs B’Chini. Miss Powner acted as peacemaker. Eventually, the two shook hands and went back to work.

	Later, the appellant appeared unhappy about the matter. He sought out another director. The following day he was seen by Miss Powner, but he told her that he did not wish to take the matter any further.

	Subsequently on 7th February, the appellant did not attend for work. He failed to telephone before 10 a.m. to inform his employers that he would not be coming in contrary to the works’ rules. Miss Powner decided to dismiss him and did so.

The Industrial Tribunal decision
The tribunal expressed sympathy for the potential argument that the appellant was unfairly dismissed. However, he had insufficient service to bring such a complaint and thus they were concerned only with the claim under the Sex Discrimination Act.

	Dealing first with direct discrimination, the appellant treated the complaint here as one of sexual harassment. Put in the context of the Act; was the appellant treated less favourably by the respondents than they would treat a woman on the grounds of his sex, and if so, had he been subjected to a detriment. Ss. 1(1)(a) and 6(2)(b).

	The tribunal directed itself that a single act of discrimination will not usually amount to sexual harassment unless it is of an extremely serious nature. The tribunal applied their common sense and knowledge of language used in the work place and concluded that the use of the expression “wanker”; albeit a stupid remark, did not in the context of this case amount to sex discrimination.

	As to victimisation, the tribunal found first that as there was in their view no act of discrimination, there was no victimisation, but that secondly his dismissal was not in any way caused by his complaint about the incident involving Mrs B’Chini and Mrs Jones.

	Accordingly, the application was dismissed.

The Appeal
It is submitted that having found as a fact that the behaviour complained of had taken place, the tribunal erred in finding that the appellant was not less favourably treated than a woman and that he was not subjected to a detriment. Had any similar treatment been meted out to a woman a reasonable tribunal would have concluded that she had been subjected to sexual harassment amounting to unlawful discrimination. A single act, if sufficiently serious, may be enough to amount to a detriment. See Bracebridge Engineering Ltd v Darby [1990] IRLR 3. It is no answer that a woman would have been treated just as badly as was the male appellant. It is the sexual character of the treatment which renders it unlawfully discriminatory. Strathclyde Regional Council v Porcelli [1989] IRLR 134.

Conclusion
We accept that men and women must be treated equally. It makes no difference that the complainant in this case is a man rather than a woman.

	As to direct discrimination, assuming that the appellant has made out a case of unequal treatment, we think that the tribunal was entitled to conclude that he suffered no detriment. A single act of sufficient seriousness may be enough to complete the statutory tort: see Bracebridge and Insitu Cleaning Co Ltd v Head [1995] IRLR 4. However, it will largely be a question of fact and degree for the Industrial Tribunal. Absent perversity, we cannot interfere with such a finding. Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 330. We cannot say, on the facts of this case, that perversity has been made out. Further, it is clear from the tribunal’s findings that they were satisfied that Miss Powner had properly investigated the appellant’s complaint in the instance. 

	Secondly, victimisation. We would not uphold this tribunal’s decision on the basis that because there is no finding of discrimination, there can be no victimisation. The protected act under s. 4(1)(c) of the Sex Discrimination Act is not limited to valid complaints of discrimination; it is enough, potentially, that a complaint of discrimination has been made. However, once a protected act is identified, it is then necessary for the applicant to show that it was the protected act which caused him to be treated less favourably than a person who had not done the protected act. Aziz v Trinity Street Taxis Ltd [1988] ICR 534. It is at this point, we think, that the appellant’s case fails on the facts. The tribunal made a clear finding that his dismissal was caused by his absence from work and its effect on production, not by his earlier complaint about the behaviour of Mrs B’Chini and Mrs Jones. There are no grounds for interfering with that finding of fact.

	In these circumstances we have concluded that this appeal raises no arguable point of law to go forward to a full appeal hearing and, consequently, it must be dismissed.