Appeal No.	 EAT/136/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 June 1997

Before
HIS HONOUR JUDGE PETER CLARK
MISS A MADDOCKS OBE
MR J C SHRIGLEY

MS D	APPELLANT

J ALFORD TRANSPORT LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P DOUGHTY
(of Counsel)
The Andrew Issacs Practice
21 Lansdowne Road
Bournemouth
BH1 1EL	
For the Respondents	MR O L LEIGHTON
(Representative)
11 Edge Hill Road
Southampton
Hampshire
SO18 2AH	

	JUDGE PETER CLARK:   This is an appeal by the applicant before the Southampton Industrial Tribunal sitting on 23rd, 24th January and 26th September 1996 which, by a majority decision, dismissed her complaint of unlawful sex discrimination against her former employers, the respondent. Extended reasons for that decision are dated 3rd December 1996.

	The appellant was employed by the respondent as an HGV driver during two periods, the first from 8th February until 2nd March 1995 and the second from 17th March to 15th June 1995. There was one other woman employed as a driver, the remainder were men.

The complaint
By an Originating Application presented on 31st August 1995 the appellant complained that she was subject to discrimination, both in terms of the jobs she was given and the lorries she was asked to drive and was subject to sexual harassment through constant sexual innuendo and sexually suggestive behaviour and remarks. She gave detailed particulars of those allegations.

	By its Notice of Appearance the respondent denied discrimination, and in particular made no admissions as to the appellant’s allegations of sexual harassment, and averred that when the appellant made a complaint it was properly investigated and dealt with by the Managing Director, Mr Jimmy Alford.

The Industrial Tribunal Decision
The following matters are material to this appeal:

(1)	Sexual harassment
	The majority record, in paragraph 15 of their reasons, that the appellant’s evidence to the Industrial Tribunal, and the content of her journal, showed that she thought that the other male drivers and the management were constantly talking about her and making innuendoes with an implied sexual content. The detail of her individual allegations are not set out.

	The majority noted that the managers and the individual drivers denied in evidence the instances of discrimination alleged against them.

	By way of resolving that conflict of evidence the majority observe, at paragraph 18:

“18.  The Tribunal believed that in the chatter and repartee amongst the drivers, in the limited period when they were in the yard, there would inevitably have been some measure of innuendo, and that there would be some sexual implications. If it was distasteful to the applicant she was able to minimise her contact with it.”

	The minority member, in a separate decision, rejected the drivers’ evidence that they never used sexist language. She disagreed with the majority’s view about the language used as expressed in paragraph 18 of the majority’s reasons.

(2)	Investigating the appellant’s complaint
	The majority found that matters came to a head in late April or early May when the appellant complained to Mr Alford about unwanted attentions she was receiving from a male employee, Mr Collins, the Night Shunter, and the attitude of Mr Payne, the General Manager. The majority record that in evidence Mr Alford did not, with hindsight, consider that he handled the matter well, in that he ought to have invited one of the union committee members to accompany the appellant. The majority found that the investigation was not conducted in an ideal manner but concluded that a complaint by a male driver would have been handled in exactly the same way.

	The minority member found that the investigation was intimidatory and oppressive. She held that a failure to treat the appellant’s complaint seriously and to investigate them properly constituted unlawful discrimination on the part of the company.

(3)	The female toilet
	There were two toilets on the premises. The ladies toilet was upstairs; that toilet was locked after 7 p.m.; in order to use it after that time the appellant would have to obtain a key from the night security office.

	The minority member of the tribunal found that it was discriminatory to fail to make a lavatory available for female members of the driving staff with the same ease as the men; the majority did not.

(4)	The majority decision
	The majority’s conclusion is expressed in paragraph 21 of their reasons in this way:

“21.   Having considered carefully all the allegations made by the applicant and the evidence given by the respondent’s witnesses the Tribunal is critical of the poor standard of administration at the respondent company and of the conduct of the investigation held by Mr Alford after the applicant had complained to him. However the majority of the Tribunal find that they do not find it proven that the applicant on the ground of her sex was treated less favourably that the male drivers. The applicant in her diary criticises her employers at four former places of employment. She worked with the respondent company from 8 February to 2 March and then left to take up permanent employment elsewhere. Within two weeks she asked to return to Alford’s and did start work again on 17 March. She left again of 15 June but the Tribunal was told by Mr Payne that about a week later she telephoned him saying that she should not have left as hastily as she did and asking if she could return. She was told that there had been a re-organisation consequent on her sudden departure and there was now no vacancy for her. The Tribunal is confident that if there had been significant sexual discrimination against the applicant, she would not have returned after her first leaving and would not have asked to return yet again after her final departure.”

The Appeal
We shall deal first with Mr Doughty’s principal ground of appeal. It may be shortly stated. He submits that as to the issue of sexual harassment the majority failed to make any or any adequate findings of primary fact and secondly, failed to define the legal issues arising in the case and to demonstrate sufficiently their self-direction on the law. He relies upon the judgment of Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250, at paragraph 8, as applied by the Employment Appeal Tribunal in the sexual harassment case, Wadman v Carpenter Farrer Partnership [1993] IRLR 374, see paragraph 14 of the judgment of Wood J.

	There are many cases in which the factual background is hardly in dispute. This is not one of those cases. Mr Leighton, who conducted the respondent’s case below and before us, points out that he called every male employee against whom complaint was made by the appellant in the particulars contained in her Originating Application. Each denied the specific allegation or allegations made against him in evidence. It was essential, in our judgment, for the Industrial Tribunal to clearly make findings on those conflicts of evidence. The majority failed to do so. Whereas, for example, the minority member in paragraph 6 of her dissenting decision expressly rejected the respondent’s witnesses evidence that they used sexist language, the majority concluded, in paragraph 18 of their reasons, that their would inevitably be some measure of innuendo, and some sexual implications, in the repartee amongst the drivers in the yard. That is simply not enough. It was necessary in this case for the tribunal to find as fact what, if anything was said by whom, and whether or not those remarks were directed at the appellant.

	Only then is it possible for the tribunal to determine whether or not the appellant was subjected to sexual harassment. If so, applying the approach of the Court of Session in Porcelli [1986] ICR 564, was the treatment meted out to the appellant treatment only meted out because she was a woman? If so, then she is treated less favourably than a man for the purposes of s.1(1)(1) of the Sex Discrimination Act 1975, and has suffered a detriment for the purposes of s.6(2)(b). See per Lord Grieve 573c-574G.

	In our judgment the first submission made by Mr Doughty must be upheld. The Industrial Tribunal fell into error. The appeal must be allowed and the case remitted to a fresh Industrial Tribunal for rehearing de novo. In these circumstances it is both unnecessary and undesirable for us to go on to consider the two further submissions advanced by Mr Doughty. The question of the respondent’s investigation into the appellant’s complaint, and the significance of the position of the ladies lavatory will be matters for the next Industrial Tribunal to consider and weigh in the balance.

	Before parting with this case we should add two further observations. The first is that although represented by a solicitor for the first two days of the hearing before the Industrial Tribunal, the appellant conducted her own case on the final day. Accordingly, the Industrial Tribunal did not have the advantage of argument which we have heard today from experienced Counsel on behalf of the appellant. Secondly, we have equal sympathy with both the appellant and the respondent, who must now face a further Industrial Tribunal hearing, at which the same evidence will be rehearsed. However, that is the inevitable outcome of our view of this Industrial Tribunal’s approach to its central role of finding the facts and applying the law. We would also observe that it is helpful, where an Industrial Tribunal is divided, for the views of the minority member to be incorporated into the written reasons drafted by the experienced Chairman, rather than to have, effectively, two separate judgments. We need to be able to see where the members parted company in relation to findings of fact as well as the conclusions which the members drew from those primary facts.

	Legal Aid taxation granted to the appellant.