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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Geliot Whitman Ltd v. O'Donoghue [2000] EAT 1026_99_2311 (23 November 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/1026_99_2311.html Cite as: [2000] EAT 1026_99_2311

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APPEARANCES

 

For the Appellant	MR M DALE (Representative) Richard C Hall & Partners Crown Buildings 121a Saughall Road Blacon Chester CH1 5 ET
For the Respondent	MS B LEBOW (Solicitor) 139 Harringay Road London N15 3HP


 


JUDGE D M LEVY QC

1. This is an appeal from a decision of an Employment Tribunal sitting at London North on 16 June 1999. The decision was promulgated on 9 July 1999, the Applicant below ("the Appellant") was a lady who had had a relationship with the second Respondent, both of them being in the employ of the first Respondent ("the Company"). The Applicant's complaint to an Employment Tribunal was dated 7 January 1999.
2. The unanimous decision of the Tribunal was that the Applicant had established her claims against the Company: these were claims of unfair dismissal and claims of sex discrimination. The holding of unfair dismissal is not challenged on the appeal made by the Company by Notice dated 18 August 1999. The issue raised on appeal is whether the Tribunal was right in finding there was sexual harassment as described by the Applicant in her complaint and in the extended reasons.
3. The matter came on the ex parte proceeding before a Tribunal headed by Judge Clark. The panel allowed it to go to a full hearing, giving brief reasons why these should come before a full hearing. Judge Clark summarised the facts very shortly:-

"The Applicant complained that Mr Woodward was abusive towards her and that Senior Management had failed to protect her from such abuse, but had taken Mr Woodward's side in the dispute. She contends that in those circumstances the company was in fundamental breach of the implied term of mutual trust and confidence, entitling her to leave in circumstances amounting to Constructive Dismissal. Further, the company had treated her less favourably on the grounds of her sex by favouring Mr Woodward a man, who had himself harassed her."

4. At the preliminary hearing, Mr Dale appeared for the Company and the submissions he made before have been repeated here: namely that the Tribunal did not consider whether the less favourable treatment that was found to have been meted out to the Applicant was on the ground of her sex. He submitted that it was simply not enough to show there was a difference in sex between the Applicant and Mr Woodward, it overlooked the Applicant's own case, that management in the shape of Mr Geliot the Managing Director of the Company, favoured Mr Woodward in the dispute because of his friendship with Mrs Woodward. The less favourable treatment was on the grounds of friendship not on the grounds of the Applicant's sex.
5. We have heard that submission in extended form in the Skeleton Argument and oral submissions from Mr Dale who has referred us to the decision of the House of Lords in James -v- Eastleigh Borough Council [1991] IRLR 288. In particular he referred us to the "but for" paragraph in Lord Lowry's speech to be found at paragraph 45 in the report of his speech. He has also referred us to the passage in Martins -v- Marks & Spencer plc [1998] IRLR 326. He submits that the Tribunal never went into the "but for" test which it should have done before it reached its decision.
6. There were, of course, two Respondents below: both the company and the individual Respondent, with whom the Applicant had a relationship, the fact that there was a breakdown of a relationship between them, Mr Dale submitted was not on grounds of sex but simply because a relationship failed. Against that, Ms Lebow who appeared for the Applicant, said we should take into account the subtleties of human inter-reaction from which sex discrimination could be implied.
7. We have carefully considered the submission of Ms Lebow. In our judgment the submissions of Mr Dale are to be preferred: the Tribunal plainly failed to consider the "but for" test, if they had done so, they would not have come to the conclusion that there had been sexual discrimination in this case.
8. We do not think it is necessary for there to be a re-hearing on this point; we think we can see from the documents before us that that decision was wrong, therefore when the matter goes for remedy hearing, the remedy should be based on unfair dismissal but not on sex discrimination. To that extent, we allow this appeal.

We thank both representatives for their assistance today.