Appeal No. UKEAT/0092/05/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 July 2005

Before
THE HONOURABLE MR JUSTICE BEAN
MR M CLANCY
MR T HAYWOOD

CHRISTOPHER RILEY	APPELLANT

NICK BASE t/a GL1 HEATING	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS GARRETH WONG
(of Counsel)
Instructed by:
Gloucester Law Centre
Third Floor
75-81 Eastgate Street
Gloucester GL1 1PN	
For the Respondent	MS REBECCA TUCK
(of Counsel)
Instructed by:
Messrs Davies & Partners
Solicitors
Rowan House
Barnett Way
Barnwood
Gloucester GL4 3RT	

SUMMARY

Sex Discrimination: Indirect

Full hearing 

Employment Tribunal failed to apply s64A of the Sex Discrimination Act 1975 and the guidelines in Igen v Wong; when the employer was found to have used violence towards the male Applicant which, he admitted, he would not have done to a woman.  Appeal allowed and finding of sex discrimination substituted. 

THE HONOURABLE MR JUSTICE BEAN

1.	This is an appeal from a Decision of an Employment Tribunal held at Bristol under the chairmanship of Mr Toomer in a rather unusual case.  The Tribunal decided that the Respondent employer had to pay the Applicant £275 damages for breach of contract and there was no appeal against that decision.  It dismissed the Applicant’s claim of unlawful discrimination on the grounds of sex and from that part of the decision, the employee appeals.   

2.	The Respondent is a sole trader – a plumbing and heating engineer.  The Appellant, who was born in September 1986, went to work for the Respondent as an apprentice in June 2003.  This was the first time the Respondent had taken on either an employee or an apprentice.  As the Tribunal put it, the two men were effectively a business.  The Appellant’s case is that he was physically abused on a number of occasions by the Respondent.  He alleged that the Respondent had something called an “apprentice correction stick” and used it to beat the Appellant on a number of occasions and also pushed him against the wall, put his hands around his throat and punched and hit him around the head and the body.  There were also allegations of verbal abuse of a kind far more common in working environments than the physical abuse which was alleged in this case.  

3.	The Respondent denied the bulk of the allegations.  He admitted one which was that, on 17 December 2003, he gave the Appellant a “clip around the ear” and called him a “fucking wanker”.  He alleged that the remaining incidents were made up by the Appellant in order to bolster the claim for compensation.

4.	The Employment Tribunal, who heard evidence from both parties, were satisfied on the balance of probabilities that the Applicant’s account of what happened as he had set it out in his witness statement was substantially true.  In particular, they were quite satisfied that he had some bruising on his leg caused by the application of the “apprentice correction stick”.  

5.	The Appellant’s case on sex discrimination was that the Respondent would not have treated a female apprentice in the same way.  Of course, there was no actual comparator, so the Tribunal, as they said, had to consider the matter from a basis of a hypothetical 18 year old female apprentice in similar circumstances.  At paragraphs 18-21 of their Decision, the Tribunal held as follows:
“18.	The respondent's case is that he would treat anyone in the same way who behaved as the applicant did but, equally, he has said in the course of his evidence, that he would not hit a woman or treat her as the applicant alleges that he was treated. Of course, his case has always been that he did not treat the applicant as alleged in any event, save for the clip round the ear which he said he would have delivered to any apprentice, male or female, in those particular circumstances.
19.	We have been directed to the recent authorities of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 and Bahl v Law Society [2003] IRLR 640 and the Chairman has also raised with the parties the recent authority of University of Huddersfield v Wolff [2004] IRLR 534. The salient point here, it seems to us, is that it is not enough for the applicant simply to show that there was unreasonable behaviour, which certainly there was, and that there is a difference in sex, as there would be in this case between the applicant and a hypothetical comparator. The applicant has to go further. He needs to show at least a prima facie case that this treatment is on grounds of his sex or, as the EAT in Bahl put it, that the employer could have been influenced by unlawful discriminatory considerations.  Our difficulty here is that we find it difficult to see evidence that the respondent was influenced in this way, and treated the applicant as he did because the applicant was a man, rather than because the respondent had a short temper and flared up quickly when faced with what he thought was poor performance. We strongly suspect that when he said that he would have clipped a woman round the ear in the circumstances in which he has admitted hitting the applicant, he was actually telling the truth. Considerations of sex simply did not apply. It was all down to bad temper and a lack of self-control.
20.	It has also been suggested that the term "fucking wanker" is discriminatory, in that it is gender- specific abuse. In the industrial experience of the lay members, however, that term of abuse has been applied to both men and women, and we did not therefore accept that argument.
21.	We have considerable sympathy for the applicant. We think that he has been treated very badly and it is all the more regrettable that this should have happened at the very beginning of his working life. Nonetheless, we are not satisfied that this was discriminatory conduct. In all those circumstances, therefore, the claim of sex discrimination must fail but the respondent must pay the applicant £275 as damages for the breach of contract which we have already identified”.

	
6.	Section 63(A) of the Sex Discrimination Act 1975 as amended provides so far as material:
“(2)	Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent –
(a)	has committed an act of discrimination against the complainant which is unlawful by virtue of Part 2
	…
The Tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act”.
The leading case on the application of that subsection, decided since this case was before the Tribunal, is now Igen Ltd v Wong [2005] ICR 931.  This, in some respects, altered the guidance previously given in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205 which was cited to the Tribunal.  

7.	In the judgment of the Court in Igen delivered by Peter Gibson LJ, the Court of Appeal said this of s63(A):  
“17.	The statutory amendments clearly require the employment tribunal to go through a two-stage process if the complaint of the complainant is to be upheld. The first stage requires the complainant to prove facts from which the tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant.  The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld”.  

The Court of Appeal said:
18.	….We think it clear, as Mr Allen submitted and Miss Slade accepted, that the amendments did not codify, but altered, the pre-existing position established by the case law relating to direct discrimination…It is for the applicant complaining of discrimination only to make out his or her case to satisfy the first stage requirements. If the second stage is reached, and the respondent's explanation is inadequate, it will be not merely legitimate, but also necessary for the employment tribunal to conclude that the complaint should be upheld. 
and at paragraph 22:
“The words ‘in the absence of an adequate explanation’, followed by ‘could’ indicate that the employment tribunal is required to make an assumption at the first stage which may be contrary to reality, the plain purpose being to shift the burden of proof at the second stage so that unless the respondent provides an adequate explanation, the complainant will succeed.  It would be inconsistent with that assumption to take account of an adequate explanation by the respondent at the first stage”.

8.	In paragraph 19 of their Decision, the Tribunal was entirely right to say that it is not enough for an applicant simply to show unreasonable behaviour and that a difference of sex was a hypothetical comparator.  In other words, in effect, simply to show unreasonable behaviour is insufficient to satisfy the requirements of the section and case law.  As the Tribunal said, the applicant has to go further.  In the fourth sentence of paragraph 19, they said “he needs to show at least a prima facie case that his treatment is on grounds of his sex or, as the EAT in Bahl put it, that the employer could have been influenced by unlawful discriminatory considerations”.  The second of these two alternative formulations is, we believe, good law.  The first causes us some concern.  We do not think that it is quite accurate in the light of Barton as amended in Igen v Wong to say that the applicant needs to show at least a prima facie case that the treatment is on grounds of sex.  As the fifth Barton guideline, confirmed by the Court of Appeal in Igen v Wong states:  
“5.	It is important to note the word ‘could’ in s63(A)(ii).  At this stage, the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination.  At this stage, the Tribunal is looking for primary facts before it to see what inferences of secondary fact could be drawn from them.
6.	In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts”.

9.	Here the subtleties of what may amount to facts from which the Employment Tribunal could conclude that there had been discrimination do not arise.  In paragraph 18 of their Decision, the Tribunal record the Respondent’s admission in the course of his evidence that he would not hit a woman or treat her as the Applicant alleges that he was treated.  This sentence is not suggested to be an inaccurate record of what Mr Base said in evidence.  The Tribunal go on to say:
“Of course, his case has always been that he did not treat the applicant as alleged in any event save for the clip round the ear which he said he would have delivered to any apprentice, male or female, in those particular circumstances”.
Taking this paragraph as a whole, we understand the Tribunal to have recorded a distinction drawn by the witness between the clip round the ear, which is treatment he would have meted out to any apprentice, male or female, and the more serious violence that he would not have meted to a woman.  

10.	Ms Rebecca Tuck, in her valiant submissions on behalf of the employers, was driven to argue that the Employment Tribunal had, with the sole exception of the “clip round the ear” evidence, rejected Mr Base’s testimony wholesale and must therefore have rejected his evidence that he would not hit a woman or treat her as the Applicant alleges that he was treated.  It would have been extraordinary to reject such an admission against his own interests by a witness who was a party to the Tribunal proceedings and to do so would require an express finding of the Tribunal which is simply not there.  We conclude that, on the findings of fact, accepting the Appellant’s evidence of what was done to him and the Respondent’s admission in evidence contained in paragraph 18 of the Decision, the Claimant had clearly proved facts from which conclusions could be drawn that the Respondent had treated the Claimant less favourably on the grounds of sex.  

11.	The analysis, according to Igen v Wong, therefore moves on to guidelines 9-11.  The burden of proof moves to the employer and it is for the employer to prove that he did not commit or, as the case may be, or is not be treated as having committed the acts in question and to discharge that burden, the employer has to prove on the balance of probabilities that the treatment was, in no sense whatsoever, on the grounds of sex.  It is clear to us, in this case, that the employer simply failed to do so.  

12.	The Employment Tribunal was entitled to accept the Respondent’s evidence about the clip round the ear incident and their rejection of that aspect of the Appellant’s claim cannot be impugned on appeal.  They were also entitled to find that the verbal abuse referred to in paragraph 20 of their judgment is of a type commonly applied to men and women in employment, including apprenticeship and was, in this case, not gender specific.  Mr Garreth Wong, for the Appellant, has not sought to overturn that finding and, in our judgment, it cannot be criticised.  

13.	As regards the incidents of violence of physical abuse other than the clip round the ear, the Employment Tribunal did not find that the employer had put forward an adequate explanation to discharge the burden of proof.  Indeed, it would be very difficult to see how they could have done so.  The best that can be done on the employer’s behalf is to point to the conclusion of paragraph 19 that “it was all down to bad temper and a lack of self-control” and the reference earlier in the same paragraph to the Respondent having a “short temper and flaring up quickly when faced with what he thought was poor performance”.  We do not think that these references to bad temper and flaring up quickly can be interpreted so comprehensively as to amount to a finding that hitting and punching the apprentice around the head and body and hitting him on the buttocks with a stick is treatment which would, contrary to the Respondent’s own admission in evidence, had been inflicted equally on a woman.  That too, would have required a clear and express finding by the Tribunal of fact.  Otherwise, the admission by the Respondent seems to us the clearest possible indication that there was a difference in treatment, influenced consciously or subconsciously, by sex: see Nagarajan v London Regional Transport [2000] 1 AC 501.  It is not necessary to speculate whether this was because the Respondent felt that a man could take it or whether he had inhibitions about hitting a woman in this way.  The Claimant, in our view, has succeeded at both stages of the Igen v Wong analysis. We therefore allow the appeal and substitute a finding of sex discrimination in respect of the acts of physical abuse, other than the clip round the ear.  We remit the case to the same Employment Tribunal, if available, to consider what compensation should be awarded to the Applicant both in respect of the personal injury itself and the injury to his feelings.

14.	We are very grateful to both Counsel for their clear, concise and helpful submissions.