Appeal No.	 EAT/354/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 May 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR D J JENKINS MBE
MRS M E SUNDERLAND JP

(1) TOCRIS COOKSON LTD (2) DR D CRAWFORD	APPELLANTS

DR K PITTAWAY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR T KEMPSTER
(of Counsel)
Messrs Wansboroughs Willey Hargrave
Solicitors
103 Temple Street
Bristol
BS99 7UD	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether there is an arguable point of law raised in the Notice of Appeal which has been filed on behalf of the two respondents to Dr Pittaway’s application, which succeeded in the Industrial Tribunal.	

	Dr Pittaway had complained of unfair constructive dismissal. She complained that she had been discriminated against on the grounds of her sex by both respondents and she complained of a breach of contract.

	The respondents denied any liability to the applicant. 

	The Industrial Tribunal, in a reserved decision running to 15 pages of typescript and 89 numbered paragraphs, dated 12th January 1998, concluded by a majority that both respondents had discriminated against the applicant on the grounds of her sex and that her complaint in that respect was not out of time. The tribunal unanimously decided that she had been unfairly constructively dismissed, but that she was not guilty of any contributory conduct.

	The facts necessary for the purposes of this hearing can be shortly stated. The first respondent is a small company which employed the applicant, Dr Pittaway. She was engaged as a Senior Research Scientist of management status. She is a pharmacologist and was working for the company which manufactures and sells specialist research chemicals. The applicant’s immediate manager at the time of her resignation was a Dr Duncan Crawford who was working alongside her at the time of her resignation. The Industrial Tribunal concluded that the applicant was a truthful witness and essentially preferred her evidence, when it conflicted with that given by the respondents. The company was directed by a Dr Sunter.

	It was Dr Pittaway’s case before the Industrial Tribunal that following her return to work after being on maternity leave and after the arrival of Dr Crawford at her place of employment shortly thereafter, she was subjected to abusive conduct by Dr Crawford, in the respects set out in the Industrial Tribunal’s decision. She believed that she was being bullied by him in the sense that he was taking advantage of her as a woman, and was using his greater power and authority against her by reason of her gender.

	Dr Pittaway complained to Dr Sunter. The tribunal concluded that in relation to the second incident Dr Sunter took the wrong view as to how to deal with the complaint which had been made to him. The tribunal found that it was his responsibility to do something about a complaint of that sort and to find out what had happened. Merely to tell them they must work together was quite inadequate. It was clear to the Industrial Tribunal that at the time the Managing Director, Dr Sunter, knew that Dr Crawford has a history of not getting on with colleagues and he gave certain evidence about his knowledge of Dr Crawford from reports which he had received.

	The tribunal concluded that they did not think that Dr Sunter displayed any real understanding as to the seriousness of the situation that was reported to him in August 1996; that Dr Sunter did not do sufficient when he merely invited Dr Pittaway to raise a formal grievance, which she declined. He then did nothing further. The tribunal said this at paragraph 27:

“This amounted to an act which damaged the applicant’s trust and confidence in the management of [the Company].”

	There was then another incident and that was reported again to the Managing Director. He did not speak to the applicant about it. The tribunal’s conclusion was that if he had done so he would have realised that the second respondent, Dr Crawford, was undermining her position.

	The tribunal then considered a specific incident between the applicant and Dr Crawford and they found, as a fact, that Dr Crawford’s behaviour was unreasonable and threatening and that his behaviour was totally inappropriate. 

	There was a further incident relating to another female employee about which they made findings. 

	The last specific substantial incident occurred at the Company’s premises on 20th February 1997. The tribunal’s findings on that are set out in paragraph 39. The tribunal concluded that Dr Crawford adopted a confrontational attitude. He ignored what he was being told by another woman, Mrs Turner. He behaved in such a way as to cause extreme distress to the applicant by the loud and angry way in which he was shouting at her. He also upset Mrs Turner. He lost his temper, prevented either of them explaining the matter and screamed at the applicant that she should “shut up” and he accused her of being no good at her job. The tribunal said at paragraph 39:

“We are satisfied that he must have been aware that Dr Pittaway was in tears but that his verbal attack on her continued. We are also satisfied that Dr Pittaway remained distressed and tearful for the rest of the afternoon.”

	The applicant decided to act and sent a memorandum to Dr Sunter dated 27th February 1997. In that memorandum Dr Pittaway said this:

“Duncan’s [Dr Crawford’s] inability to control his temper cannot be put down to a clash of personalities between Duncan and myself. I am aware of at least two other (female) members of staff at Langford who have made similar complaints, both to yourself and to [another named individual]. On one of these occasions physical force was indeed used by Duncan.
The unpredictable and bullying nature of Duncan’s behaviour towards me decreases the respect I have for him as my manager. This uneasy and intimidating working environment is not conducive to efficient or productive work, and is beginning to have consequences on my health.
I trust you to treat this matter with the seriousness it deserves, and to ensure that such incidents never happen again. I look forward to hearing of your long term solution to the problem certainly within the next few weeks.”

	After receiving this complaint Dr Sunter spoke to Mrs Turner. He had an initial discussion with Dr Crawford and he told Dr Crawford that he had taken a statement from Mrs Turner and that “there was a charge to answer”. The tribunal said that they found it of some significance that Dr Crawford told the Managing Director that he had been expecting a complaint and was rather surprised that it had “taken so long to come through”. The tribunal concluded that Dr Sunter failed to consider the two specified categories of misconduct and did not, as provided for by their procedure, apply his mind to precisely what “offence” was being alleged. The tribunal noted that Dr Sunter gave evidence that he did consider whether the alleged action amounted to gross misconduct, but they rejected that part of his evidence as they took the view that the Managing Director had made an assumption that what was being investigated amounted to “misconduct” that is misconduct and not gross misconduct. The tribunal said it was clear that Dr Crawford was given the impression either before or during the disciplinary hearing that what he was alleged to have done was not going to lead to his dismissal and that the allegation against him amounted to misconduct and no more.

	In response Dr Crawford made a complaint against the applicant. She gave evidence about that and the tribunal were satisfied that the applicant was extremely distressed by his cross-complaint believing that it was motivated entirely by malice. She was anxious about the prospect that Dr Sunter would find some of the allegations proved. 

	On 12th March the applicant met a third party who confirmed that the second respondent was “an oddball character” and that there was bound to be a victim and it is unfortunate that it had to be her. That third party also said that he would talk to Dr Sunter, and after doing this he telephoned the applicant to confirm to her that Dr Sunter was investigating Dr Crawford’s cross-complaint, in other words, that he was treating it as something which deserved investigation.

	In the light of those findings of fact, the Industrial Tribunal turned to the specific claims which were made. They considered first of all the question of sex discrimination. They unanimously concluded that the second respondent’s treatment of the applicant amounted to harassment on the grounds of her gender. 

	There has been no appeal against that aspect of the tribunal’s decision. 

	The tribunal then had to consider two questions. Firstly, were the Company vicariously liable for the actions of Dr Crawford; and secondly, and in any event, were the Company themselves guilty of unlawful discrimination in the sense that they had been allowing a regime to be run in the Company whereby women were capable of being harassed without proper protection from the employer. In paragraph 62 the tribunal referred to the s. 41(3) defence, and in paragraphs 63 and 64 they said this:

“63     The majority members of the Tribunal have concluded in any event that [the Company] themselves have been guilty of discriminatory conduct, quite apart from the conduct of Dr Crawford for which the company is vicariously liable. We do not think that Dr Sunter was deliberately discriminatory but here is no doubt that the company failed to recognise that this was a complaint about harassment on the grounds that she was a woman and that there was clear evidence that Dr Crawford singled out female employees for “less favourable” treatment.
64	The company’s managing director failed to undertake any effective disciplinary action at the time of the applicant’s complaint about incidents numbered one and two. So far as the third incident is concerned, disciplinary action was taken but the company did not operate a fair procedure.”

	The tribunal then proceed to give their reasons in paragraphs 65 to 68 both as to why they rejected the s. 41(3) defence and as to why they concluded that the Company itself, through the inactivities of Dr Sunter and his failure to deal with the complaints which were made to him, were guilty of unlawful discrimination on the grounds of race.

	The minority member expressed her view on the basis that she was not satisfied that the second respondent’s, that is Dr Crawford’s, behaviour was motivated by prejudice against female employees. It was her view that if the applicant had been male he would have been treated in exactly the same way. Accordingly she believed that the second respondent harassed the applicant because she challenged him and questioned his authority, but that the fact that she was female did not motivate this behaviour.

	It is not for us to pass any judgment on the minority member’s conclusion, but it worthwhile observing in passing that insofar as she was looking to see whether the actions of the second respondent were motivated by the gender of the applicant there was a misdirection in law since unlawful discrimination can take place without any deliberate act or improper motivation. It is possible, as in this case, for there to be unintended acts of discrimination. In this case, as we read the tribunal decision, they were of the view that there was a regime in existence in this company which did not properly protect the interests of the female members of staff.

	In relation to the unfair dismissal complaint, the tribunal were unanimously satisfied that in his inadequate treatment of both complaints about incidents numbers one and two and the disciplinary proceedings in relation to the third incident, Dr Sunter broke the applicant’s contract in two ways, first of all he failed to give his employee, the applicant, the benefit of the Company’s own disciplinary code; and secondly, he acted in such a way that he destroyed the applicant’s trust and confidence in the Company. 

	Having found that there was a breach of contract, they then asked themselves did that cause her to leave and they answered that ‘yes’. They said at paragraph 75:

“75     In the circumstances we conclude that the company’s attitude to Dr Crawford’s complaint was a “last straw” and gave the applicant legitimate reason to resign. She had explored the company’s suggestion to see if Dr Watkins was able to find her a job. Nothing permanent was available. In the circumstances she was entitled to say that by the combined actions of her manager and the company all trust and confidence had been destroyed and there was no prospect of her continuing to work for [the Company].”

	They asked themselves the question whether the applicant had acted too hastily and they rejected that suggestion, and there is no appeal in relation to it. Accordingly, they found that she was unfairly dismissed. The concluded at paragraph 79:

“79 ... In our view the reason for dismissal was the company’s breach of contract. The applicant did not resign because she feared that outcome of a proper disciplinary hearing. She resigned because she had no confidence in [the Company’s] procedures. The reason for the dismissal was an unfair one therefore.”

	They concluded that she was not guilty of contributory fault, and there has been no appeal in relation to that.

	They turned finally, therefore, to the question of whether the complaint of discrimination was within time or not. Paragraph 83 records the fact that the applicant had lodged her complaint on 13th June 1997. Her contract of employment having come to an end on 19th March 1997. There is no doubt, therefore, that her complaint was presented within three months of the date of her dismissal and the tribunal had jurisdiction to consider that complaint. It is also clear that the basis of that complaint related to a whole series of incidents which had taken place over a period of time and which built up to the final incident which determined her mind that she could no longer put up with the way she was being treated by her employers.

	The question arose as to whether she could legitimately say that the dismissal was attributable to the sex discrimination identified by the Industrial Tribunal. 

	The last incident of discrimination against her by the second respondent occurred on or about 20th February 1997, that was more than three months before she presented her complaint to the Industrial Tribunal. 

	Accordingly, on this appeal, it was argued by Mr Kempster with considerable skill that the tribunal ought not to have linked the dismissal to the sex discrimination because they were wrong to have concluded that anything that had occurred from 20th February 1997 amounted to sex discrimination as such. He challenged the conclusion of the majority which found that the Company itself had been guilty of sex discrimination.

	It seems to us that the submission which was made to us is mistaken. The reason why she left her employment was because she had been the victim of acts which are recognised by the appellants to be acts of sexual discrimination against her, committed by the second respondent; and by reason of the employer’s failure to deal properly with those complaints. It seems to us, therefore, that whether or not the Company itself was guilty of sex discrimination, the Industrial Tribunal were well entitled to conclude that she was dismissed unlawfully by reason of her gender. The whole pattern of the behaviour to which she was subjected was tainted by discrimination on grounds of sex. Whether it be by the second respondent who committed the actions or as a result of the Company being vicariously liable for his actions. 

	To that extent, therefore, it was unnecessary for the Industrial Tribunal to have concluded that the Company itself had committed acts of sexual discrimination because it would not effect the remedy to which she would be entitled. But Mr Kempster pointed out that a finding of sex discrimination against the Company itself is a serious matter in itself and we should deal with it.

	We have to say that in relation to this point, we are wholly unpersuaded that the Industrial Tribunal has failed to carry out the analysis which is required in a case such as this.

	Having regard to the findings of fact, it was quite open to the Industrial Tribunal to conclude that Dr Sunter’s failures to deal with the complaints which Dr Pittaway was making was evidence of a regime or pattern of conduct in the Company which was a continuing state of affairs, and that the Company’s failure properly to investigate the complaints which were made to it, was part and parcel of the discrimination which was going on within the Company. Accordingly, it seems to us, that not only were the Industrial Tribunal correct to conclude that the Company could not rely on the defence under s. 41(3), but that they were also entitled to conclude on the evidence that the Company itself had been guilty of discrimination in the way it dealt with the complaints which had been made to it. The plain inference is that if Dr Pittaway had been a man the Company would have dealt with the complaint differently; it was because she was a woman complaining about the conduct of a man that her complaints were not treated with the seriousness which the tribunal plainly felt they deserved. Accordingly, it was open to the Industrial Tribunal to conclude that the Company was also itself guilty of sex discrimination and, as we understand it, if that is correct, then there is no merit in the appeal that is being raised, because Mr Kempster accepts that had been the position, then when it comes to the remedies hearing the complainant will be entitled to be compensated on the basis that but for her gender she would not have walked out of the Company’s premises in circumstances in which she had been constructively unfairly dismissed by them.

	Accordingly, she is entitled to whatever remedy the Industrial Tribunal consider is appropriate having regard to their findings. 

	It seems to us that this is a well thought out and carefully drafted decision, and that the Industrial Tribunal have taken infinite pains to consider all the relevant matters. The fact that they have disagreed amongst themselves is no indication that the decision of the majority is to be treated with any caution. It is because the members fell out as to the conclusions that they should draw, that makes it the more likely that the issues in the case had been carefully examined at the crucial stage when they were having to decide what decision to arrive at.

	Accordingly, we have not been persuaded, despite the able argument of Mr Kempster, that it is arguable that the Industrial Tribunal has erred in law. That being so, we must dismiss this appeal.