Appeal No. UKEAT/0599/05/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 February 2006

Before
THE HONOURABLE MR JUSTICE LANGSTAFF
MR D SMITH
MRS L TINSLEY

MS F CASPERSZ	APPELLANT

MINISTRY OF DEFENCE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR K W D PERERA
Representative
	
For the Respondent	MISS M WHEELER
(Of Counsel)
Instructed by:
The Treasury Solicitor (Employment Team)
Queen Anne's Chambers
28 Broadway
London
SW1H 9JS	

SUMMARY

ET held entitled to find s.41(3) SDA defence made out where they found that the employer had a good policy, which was not just paid lip service to but was observed, so that the employer had taken such reasonably practicable steps to prevent sexual comments being made by a manager to his junior.

THE HONOURABLE MR JUSTICE LANGSTAFF

1.	This is an appeal from a decision of the Employment Tribunal at Stratford which is promulgated on 13 July 2005.  The Tribunal held that complaints of race and sex discrimination made by the Appellant failed.  

The Background Facts
2.	The background facts taken from the decision of the Tribunal are these.  The Appellant was a staff officer to the Assistant Chief Constable Personnel and Training in the Ministry of Defence Police Force.  She complained about a number of matters which she said constituted discrimination against her on the grounds principally of sex but also in some cases race.  Those complaints were by and large dismissed on the facts by the Tribunal but in two respects which are relevant to the consideration of this appeal the Tribunal found that she had been subject to sexual harassment by the Assistant Chief Constable to whom she was staff officer, ACC McDermott.

3.	Those two incidents arose in the summer of 2003, some three months or so after McDermott had been appointed to his post.  The first took place on 30 June 2003.  The substance of it was that in a conversation between the Appellant and McDermott he made a comment about her working her way through the male students.  It should be emphasised that the Appellant had had problems with a stalker who was one of the male probationer constables and she had maintained that Mr McDermott did not treat her complaints seriously.  The second incident on 29 July 2003 again arose out of a conversation.  When the discussion between ACC McDermott, the Appellant and a Superintendent McLaughlin turned to the question whether she might be using some MOD indulgence flights McDermott immediately said that the Claimant would know how to arrange the flight and that she must have stepped her way through enough pilots to make it happen.  The effect was that the Appellant was appalled by what had been said.  

4.	The management of her by McDermott was subject to a complaint by her a little bit later which was picked up by Superintendent Goldsmith.  He facilitated a meeting on 18 September at which the Tribunal found she did not complain about either of the two conversations which the Tribunal found constituted separate acts of sexual harassment.  Instead she complained about other aspects of his line management of her which did not obviously involve treating her as he did because of her race or sex.  A second meeting followed at an unspecified date later in September.

5.	On 4 February 2004 a staff officer spoke to the Appellant to enquire how she was getting on.  She made a number of complaints about McDermott.  Those complaints referred in general terms (we summarise) to being belittled and about her not being appreciated for her true qualities.  They plainly might have a relationship to her sex or for that matter her racial origins.  In response to those comments the Respondent took swift action.  They arranged for an interview and investigation of McDermott and suspended him on 12 February.  A report was received within a fortnight of that.  Another officer was appointed to take over from McDermott and his employment was terminated on 31 March 2004.

6.	The question before us is whether the Tribunal were right to say that in respect of the two offences of sexual harassment the statutory defence had been made out.  Section 41(3) of the Sex Discrimination Act 1975 provides as follows, under the heading “Liability of employers and Principals”:

“(1)   Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.
(3)   In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.”

One thing is immediately obvious about the focus of Section 41(3).  The steps which are to be assessed against the touchstone of reasonable practicability must be calculated (that is what we take from the words) to prevent the employee from doing that act or act of that description.  That requires a focus upon the acts or act which it is said constitutes the particular discrimination.  Accordingly, what the Respondent had here to show was whether it (a) took steps (and (b) that those were such steps as were reasonably practicable) calculated to prevent the employee from, in effect, making inappropriate sexualised remarks to a subordinate, the burden of proof being on the Respondent.

7.	The way in which the Tribunal approached that was at paragraphs 48 – 56 of its judgment:
“48     By section 41(3) of the Sex Discrimination Act 1975 in proceedings brought under this act against any person in respect of an act alleged to have been done by an employee of his, it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act or from doing in the course of his employment acts of that description.
49     the Respondent submits that it did everything reasonably practicable to prevent the discrimination taking place.  We have been referred to the case of Canniffe v  East Riding of Yorkshire Council [2002] IRLR 555.
50     The Respondent had in place a Dignity at Work policy.  The introduction of this policy was announced by a way of a force order in March 2003.  The Claimant was aware of this policy.
51     ACC McDermott did in fact have responsibility for this policy at Agency Management Board level.  Part of his role was to ensure that the policy was reviewed and published on a regular basis.  The Respondent was therefore entitled to expect that ACC McDermott was familiar with and would observe and ensure respect for this policy.
52     T/ACC Taylor gave evidence to show how seriously equal opportunity and discriminations were taken by the Respondent.  Mr Goldsmith also displayed how seriously he took the allegation relating to “stalking” and to Mr McDermott’s perceived failure to take seriously the Claimant’s concerns.
53     A report by a Mr Hubbard further evidences how seriously in practice the Respondent took allegations of breach of this policy.  As soon as the Respondent was made aware of the allegations forming part of the allegations dealt with above against Mr McDermott, it took all reasonable steps to investigate the complaints.

54     Whilst not determinative of whether section the 41(3) defence is made out, the Claimant has not identified what further steps the Respondent could have taken to prevent the acts complained of taking place.
55     In our judgement, the Respondent’s policy, practice and actions taken in this case comply in all material respects with the code of practice annexed to Commission Recommendation number 92/131/ECC on the Protection of the Dignity of Women and Men at work.
56     In our judgment, the Respondent has proved to us on the balance of probabilities that it took such steps as were reasonably practicable to prevent the employee ACC McDermott from doing in the course of his employment acts of that description.  It follows that the Respondent has a defence to the claim brought only against it.”

8.	The challenge is made as to whether or not those findings sufficiently addressed the matters in dispute between the parties.  The first ground which is taken but not advanced through oral submissions before us today by Mr Perera who appears on behalf of the Appellant is that the Tribunal erred in thinking that evidence of how seriously issues of equal opportunity and discrimination were taken by the Respondents was sufficient for a defence.  He refers in his skeleton argument to Cannife -v- East Riding of Yorkshire Council [2000] IRLR 555 EAT and Jones -v- Tower Boots Co Ltd [1997] IRLR 168 CA though these references were not explored further before us.  

9.	It is appropriate though, because of the reference to Cannife, to note what is said about the proper approach in the case of Croft -v- Royal Mail Group which came before the Court of Appeal and is reported at [2003] IRLR 592.  There in the lead judgment of Pill LJ he set out between paragraphs 57 and 63 what was the appropriate approach to the statutory defence conferred by Section 41.  He noted and approved in general terms the way in which Burton J had approached the matter in the Cannife -v- East Riding of Yorkshire Council [2000] IRLR 555 case.  That is a two stage approach (1) to identify whether the Respondent took any steps at all to prevent the employee from doing the act or acts complained of and (2) having identified those steps what steps if any they took to consider whether there were any further acts that they could have taken which were reasonably practicable.  The gloss which Croft put upon that question was directed towards the words “reasonable practicability”.  At paragraph 63 Pill LJ made it plain that in considering what steps are reasonable in the circumstances it is legitimate to consider the effect they are likely to have.  In argument the Respondents accepted that the approach which is called for a prospective one.  Measures are to be judged as to their reasonable practicability not by whether they have in fact been effective: by definition, that will not have occurred because otherwise there would be no act of discrimination calling for a defence.

10.	What must be assessed is whether putting oneself into the shoes of the employer prior to the acts which are complained about, and looking from that perspective at the possibility such acts might subsequently occur, the steps are reasonably practicable.  That involves at that stage considering (at any rate if the Tribunal thinks it is appropriate to do so) what effect those steps might have.  Ground 1 is a misreading of what the Tribunal were actually saying.  The Tribunal at paragraph 49 acknowledge the guidance in Cannife but they do not set it out in terms and then note that of the steps which were taken, one is to have in place a Dignity at Work policy.  We have seen that policy.  It is in many ways a model of its kind but it is axiomatic that it is not enough simply to have a policy that may invite no more than lip service.  What is essential is that the policy should actually be implemented.  If it is a good and proper policy and if it is conscientiously implemented then the employer may very well by those steps alone satisfy the criteria within Section 41(3).  The Tribunal would certainly be within its powers to accept that as sufficient evidence – see for instance the case of Balgobin and Francis -v- London Borough of Tower Hamlets [1987] IRLR 401.

11.	The Tribunal went on, having identified that there was such a policy, to emphasise at paragraphs 52 and 53 that the employer took it seriously: that is, that they did indeed not only have the policy but implemented it as one might hope an employer would.  They repease those points at paragraph 55 by emphasising that the policy practice and actions taken complied in all material respects with the paradigm provided by the Commission Recommendation number 92/131/ECC.  Accordingly, it seems plain to us that what the Tribunal was saying was that the steps taken were to have a good and suitable policy and to implement it and not simply to pay lip service to it.  As to whether that policy might have prevented Mr McDermott from doing as he did they dealt with that issue in paragraph 51.  They concluded that because of his position and knowledge of the policy the Respondent was entitled to expect that he was familiar with and would observe and ensure respect for the policy.  We may come back to that particular conclusion because it is in effect challenged on the facts by the Appellant before us.  

12.	We therefore see nothing in the first ground of appeal, because in our view the conclusion that was reached by the Tribunal was one which it was entitled to reach on the evidence before it.  The second ground was that the Tribunal erred in not recognising that the Respondent had failed by appointing Mr McDermott as the person having responsibility for the policy.  The argument is here that the Respondent should not have appointed Mr McDermott because of the proclivities which he was later to show.  The submission may be characterised as saying that a leopard never changes its spots.  It has support from a comment made by Inspector McLaughlin when in January 2004 he said - see page 37 of our bundle, paragraph 44 of the Witness Statement of Appellant – words to the effect that he had described the approach that McDermott had taken in the second of the two incidents of sexual harassment as being “Mac’s way, because he was trying to be one of the boys”.  That comment taken in isolation is capable of suggesting that he, McLaughlin knew well that McDermott was inclined to behave in this inappropriate manner.  

13.	This however, does not suggest to us that he should not have been appointed to have responsibility for the policy.  We have not been told that there was any evidence or discussion about the appointment process whereby Mr McDermott came into his post.  We have been informed but we do not know whether it was before the Tribunal that he commenced his post on moving from another employer.  But we do know that he began in his post in the spring of 2003.  In the absence of evidence and submission directed to the appointment process this ground cannot succeed.  

14.	Next however, is the allied point whether the Tribunal should have rejected the defence because the Respondents did not engage effective monitoring of McDermott in his role.  They ought to have known, says Mr Perera, that Mr McDermott was somebody who had “Mac’s way” as Mr McLaughlin would put it.  They ought to have realised that in the late spring of 2003 he did not take seriously an allegation by the Appellant that she had been stalked by a probationer constable.  There was in general terms a culture within the Respondent which tolerated sexism to an extent inconsistent with the policy and the observance which the Respondent claimed.  He argued that if one had regard to part of his submissions to the Tribunal of which we have the notes, he raised the question of monitoring.  It is recorded - see page 227 – that he said:
“Alarm bells were ringing in May 2003.  Not saying sex discrimination in itself.  Should alert them to be more concerned about Fiona in going into in more detail, monitor and speak to Fiona about what is happening in that office.  Cannot escape liability.” 

The word monitor is used. Mr Perera was pointed by this Tribunal to the fact that when the Employment Tribunal dealt with the defence it said in terms at paragraph 54 that the Claimant had not identified what further steps the Respondent could have taken to prevent the acts complained of taking place.  Yet there is a reference to monitoring in his submissions.  Was it then an error of the Tribunal to misunderstand that a submission was actually being made to it as to monitoring?  Miss Wheeler’s answer to this on behalf of the Respondent is that one cannot derive from one word in the course of submissions that it was seriously being put forward on behalf of the Appellant that monitoring was required.  To produce any credible suggestion to this effect, it would need to be raised more positively than this.  There would have been cross- examination about it.  There was none.  Questions, for instance, would have been asked whether or not Mr Beedle or others may have realised that such was the behaviour of Mr McDermott that he needed close supervision.  There would have been cross-examination as to what was done precisely to check on McDermott’s behaviour and in particular his inappropriate sexualised references after incidents which it was said took place in the spring 2003.  

15.	We are satisfied that no such evidential exploration took place, and that it would be necessary before a final decision might be taken by the Tribunal.  Indeed it was recognised by Mr Perera in the course of his submissions that he had some difficulty in meeting the Kumchyk -v- Derby County Council point which was taken on behalf of the Respondent.  This point is simply that is not open to an Appellant to raise in this Court an argument which he has not raised below.  Although the starkness of this position may be qualified where the argument is purely one of law, it is a particularly powerful argument to mount in circumstances where running the point below would have involved the hearing of further evidence.  Thus in Kumchyk –v- Derby City Council [1978] ICR 1116 this Tribunal held:
“that it would only be just to consider an argument not presented below in limited circumstances, for example, where a party had been prevented from arguing a point by deception; that it would not be enough that the omission to argue a particular point was due to the lack of skill of the advocate or that the omission could have been rectified by the industrial tribunal taking the point themselves;”

Those points dispose of the argument which Mr Perera advanced to us as being a reason why we should not follow Kumchyk.  He argued it was unfair for a litigant who was represented by a lay representative such as he is to be expected to raise the points of argument within the same thoroughness as a professional lawyer might.  Litigants in person very often are unaware of the potentialities of a case or its difficulties.  

16.	Whereas we have some sympathy with the position of those who are not represented before Employment Tribunals by professional lawyers not only are we bound by the Kumchyk decision which has since been approved by the Court of Appeal and his trite law but it makes perfect sense.  Any other rule would have the effect that those who are professionally represented would not be able to take a point on appeal which had not been run below whereas those who are not professionally represented would be free to do so.  That would represent an injustice to those who are represented.  It would also permit a second bite at the cherry and open up the system to the possibility of procedural manipulation.  

17.	We accept the submission that here no argument advancing monitoring in any greater detail than that to which we have already referred was put forward by Mr Perera.  We accept the submission that it is now too late to do so.  We are reassured, too, as to a lack of merit in the point having been drawn by Miss Wheeler to the background material in relation to the events in early 2003 which might have been said to give rise to some concern which would require monitoring.  Those events do not clearly involve or imply any threat that Mr McDermott might make inappropriate sexual remarks to the Appellant in such a way as to harass her.  In fact the incident principally relied upon involving Mr McDermott and Mr Beedle and the Appellant was one in which he, Mr McDermott, said to the Appellant that it might be inappropriate for him to work in the evening with a single woman, he being a married man.  He expressed concern about the appearance of it.  There was nothing obvious in that which suggests that he himself might make remarks containing sexual innuendo to the Appellant or to suggest that she was of a promiscuous disposition.  Accordingly, we cannot accept what has become the principal thrust of the appeal before us.  

18.	There are other grounds which we have to consider.  The third ground advanced is that the Tribunal erred in not recognising that the Claimant was put in the position where it was difficult for her to complain because the discriminator was the person charged with implementation of the policy and he had authority over the Claimant herself and her colleagues.  There are three answers to this.  First, it was not a point taken below.  Kumchyk applies.  Second, it does not correspond with the facts.  The Tribunal record that on 18 September there was a meeting between the Appellant and Mr Goldsmith at which she complained about the line management to which he was subject from Mr McDermott.  The Tribunal made a point that she did not then complain about the two matters which form the basis of the findings of sexual harassment, but she was plainly able to complain about Mr McDermott in other important respects.  Third, the Dignity at Work policy included under paragraph 17 a list of seven people to whom any member of staff might go if they needed support or guidance in a situation in which they believed they were being harassed or bullied, and the Tribunal found as a matter of fact that the Appellant was aware of that policy.  

19.	The final ground which is permitted to be argued before us is that the Tribunal failed to take into consideration the series of acts given as background information though some were time barred.  This is essentially to argue that in coming to the conclusions which they did the Tribunal did not set out between paragraphs 48 and 56 any of the background material relating to other claims which for reasons of time she was not permitted to proceed with against the Respondent.  We have not been shown here any matter which would directly tell against Mr McDermott.  The highest it could be put is a suggestion that there was a culture within the Ministry of Defence Police Force which belied the supposed implementation of the policy.  Examples of that might be derived from a number of incidents which took place involving the Appellant in the months following July 2003.  However, that, it seems to us, does not assist for the reasons which we have given above.  It is plain from what the Tribunal says in its decision that the Tribunal was focussing between paragraphs 48 and 56 upon whether the employer took such steps as were reasonably practicable to prevent their employee from doing the act he did i.e. making seriously inappropriate comments to the Appellant.  Whether those steps could be shown to be insufficient by reference to a generalised culture would be part of the factual assessment which the Tribunal made.  They made it, as we have noted between paragraph 50 and paragraph 55.  In particular as we have indicated we take the view that the Tribunal were here accepting that this was not mere lip service to a policy. It may be difficult for an employer to prevent an employee making some inappropriate comment to a person of a different race or gender.  What is necessary is not that the employer should prevent it.  It is that he should take such steps as are reasonably practicable to that end.  If one adopts the approach encouraged by Croft, it is necessary to look at the question in advance prospectively with an assessment of reasonableness which depends in part upon the likely effectiveness of any measure taken.  It is not difficult to see how it is at least open to a Tribunal to conclude that having a policy and implementing it and taking it seriously is as much as one can do.  

20.	We should emphasise that this decision should not be taken as a carte blanche for employers elsewhere simply to adopt a policy and no more.  Everything must depend upon the particular facts of a particular case.  If there is good reason to think that, for instance, a manager is harassing a junior employee then the employer cannot simply rely upon having a policy, no matter how seriously the employer takes it.  More would be needed.  But that is not this case.  Here, the Tribunal found in paragraph 53 that as soon as the Respondent was made aware of the allegations it took all reasonable steps to investigate.  That was a finding of fact which was open to the Tribunal.

21.	It accordingly follows that its conclusion that the defence was made out was open to it.  Though the reasoning may be perhaps regarded as thin, there is sufficient in our view to express that reasoning to comply with the requirement that the judgment should be one which informs the parties why they have won and lost, and which is sufficient to enable us on appellate review to see whether the right considerations have been taken into account.  Accordingly, we have come to the conclusion that this appeal must be dismissed.