Appeal Nos. EAT/257/99 & EAT/332/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 June 1999

Before
HIS HONOUR JUDGE WILKIE QC
MR D J JENKINS MBE
MR P A L PARKER CBE

PREMIER ASSOCIATES	APPELLANTS

MISS L FYFE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR D BRADSHAW
(Representative)	

	JUDGE WILKIE QC:	These are two appeals which we have heard together. The principal appeal is against a decision of the Employment Tribunal, promulgated on 7th January 1999, after a hearing on 14th-16th December 1998, in which there was a unanimous decision that the applicant was discriminated against contrary to Section 1(1) of the Sex Discrimination Act 1975 and was awarded compensation in the sum of £3,000. The associated appeal is against a refusal by the tribunal Chairman, by a decision promulgated on 29th January 1999, to review that earlier decision.

The appellant have been represented by Darren Bradshaw who represented them at the Employment Tribunal. We pay tribute to the fair-minded and clear way in which he addressed his arguments to us this morning.

1.	In essence, the basis for the appeal against the substantive decision of the Employment Tribunal was that the tribunal and in particular the tribunal Chairman, had displayed an attitude of hostility and bias towards the appellant’s case, one of the appellants’ witnesses in particular and the appellants’ representative. In addition, it is said that the tribunal made a number of clear and indisputable factual errors, particularly in respect of the arrangements for and the workings of the computer system which was central to this case.

2.	I indicated to Mr Bradshaw at the outset of argument this morning that had we felt that the nub of the Employment Tribunal’s decisions did rest upon their view on matters of credibility or related to the matters of fact which were said to be in dispute, then by reason of the fact that the allegations of bias were supported by three separate affidavits, namely of Dean Bradshaw, Mr Palmer and Ms Gwyneth Collier-Harris, we would have been minded to allow this appeal to go to a full hearing because there are serious allegations and not matters to be dealt with summarily or in a way which might give rise to an appearance of their being brushed under the carpet. We therefore asked Mr Bradshaw to address us on what seemed to us and still seem to us to be the crux of the tribunal’s decisions.

3.	The decisions which are complained of are firstly the decision to extend time for the making a complaint pursuant to s. 76 of the Sex Discrimination Act 1975 and in particular s. 76(5). The second complaint concerns the finding of sex discrimination and the third complaint concerns the level of compensation awarded.

4.	Each of these issues is addressed in a specific paragraph within the extended reasons for the decision. The first issue is dealt with in paragraph 4; the second issue is dealt with in paragraph 5 and the third issue is dealt with in paragraph 10 in such a way it is clear that the assessment for compensation is on a limited basis, the basis dealt with by paragraph 5 and paragraph 9.

5.	As far as the extension of time is concerned, the Employment Tribunal focused on a particular incident which occurred on 21st January 1998. That incident was the accessing to and hard copy printing out of a document within the respondent’s computer system by the complainant. That document is described by the Employment Tribunal in paragraph 5 as so-called poem which was so offensive and degrading that it justified the tribunal of exercising its discretion to extend time if, in all the circumstances of the case, it considers that it is just and equitable to do so. 

6.	We can see nothing at all erroneous in that exercise of that discretion on that basis. 

7.	The document itself is one of the forms used by the appellant in the course of its business. It is entered in the system under a reference which appears, from what Mr Bradshaw has told us, to be systems testing facility. However, it does purport to reproduce one of the documents or a form of document which is common place in the business. 

8.	It is right to say that this was an issue upon which the tribunal had made a contrary finding and which is the subject of the application for review. But accepting what Mr Bradshaw says as to the fact, the fact does remain that this is a system to which employees had access in terms of inputting information into the system, and indeed, it was designed to do so in order to enable the appellants’ employees to test the system.

9.	The document itself purports to identify the party who created it by use of a user number. Mr Bradshaw informed us that the user number which appears on this document as indicating the apparent creator of the document, was that of Mr Dean Bradshaw the Senior Partner in the company and the person to whom either directly or ultimately any complaint by a member of staff of harassment would have to be made. In fact Mr Bradshaw denied having been the creator of this document and the Employment Tribunal made no finding that he was. The reason explained to us this morning by Mr Darren Bradshaw, being that this particular system is insufficiently secure so as prevent some rogue employee inputting information apparently in the name of somebody else, in this case that of Mr Dean Bradshaw. The document, however, itself has the appearance of emanating from Mr Dean Bradshaw and no doubt was intended to have that effect upon the recipient of it, namely the complainant. The document names the complainant as being its subject, that is to say the person against whom enforcement was being sought of a fine. The offence which it is said that she had committed was, in effect, one of prostitution. The enforcement suggested is rather than that she pay the fine, that she should supply certain sexual favours to someone with the initials of Mr Dean Bradshaw, and there then follows, in the form of a poem, a graphic description of her alleged activities and ultimate fate. It is that document which this Employment Tribunal focused on and, as we indicate, we can see no error whatsoever in their deciding to exercise their discretion on the basis that it would be just and equitable to permit her to make complaint about this alleged piece of harassment out of time. 

10.	It is right to say that if they had decided not to exercise their discretion then the authorities indicate that before deciding not to do so there is checklist of matters to which they have to have regard. But in our judgment it was a sufficient basis for them to exercise their discretion positively to extend time on the basis that they have identified in paragraph 4 of their decision.

11.	The substantive decision is set out at paragraph 5 and then repeated at paragraph 9 of their decision. That this is so is clear from the words of the third last sentence of that paragraph where the Employment Tribunal say that in the light of certain admission the tribunal do not need to go further. The situation is covered by s. 41(1) of the 1975 Act, that is to say the section which establishes liability for sex discrimination on a vicarious liability basis and indeed, Mr Darren Bradshaw acknowledged in argument that it could not be argued, that this company could not be vicariously liable for somebody who placed such an entry on the company’s own computer system utilising for its purposes one of its own formatted document forms.

12.	The express admissions which Mr Dean Bradshaw, the chief witness, had made, and which Mr Darren Bradshaw accepted were made, was that in fact there had been a poem which manifestly had come to the complainant’s attention. That the poem was offensive. Mr Dean Bradshaw had indicated that if it had been about him he would have been humiliated and he agreed that the poem came out of and was on the appellants’ computer system and that only either he, his partner or his staff had access to the computer. On that basis, unless the author of the document was the complainant herself, being a member of staff, which we agree with the Employment Tribunal, given the subject matter and the content of the document, would have been an utterly fanciful suggestion. Leaving her to one side, then anyone who did have access to the computer and could have inputted this document would be somebody for whom the appellants would have had vicarious liability under s. 41(1). We conclude, therefore, that the Employment Tribunal came to their decision that the appellant was liable for this single act of harassment constituting sex discrimination on that basis. Therefore, although there was great deal of other evidence, and there were issues of credibility, and we have already indicated our view as to those matters, in fact those matters were utterly irrelevant to the actual decision which the Employment Tribunal came to. Therefore no possible appeal on the basis of bias could, if established, affects the substance of the decision on that basis. Therefore, in so far as there is an appeal on the matter of substance, our conclusion is it is not reasonably arguable that there chould be a successful appeal either on point of law or on the basis of perversity or bias. Therefore this issue should not go any further.

13.	In so far as the appeal is on matters of compensation, it is clear to us, and indeed Mr Bradshaw accepted in argument, if one looks at paragraphs 9 and 10, that the award of £3,000 was for injury to feelings and that it addressed specifically this single incident and the effect that it is said had on the complainant. In the light of the fact that Mr Bradshaw himself accepted that he would have been humiliated had it been written about him, and that there was a finding by the tribunal to the effect that the complainant did feel embarrassed and sick when she saw the document, which is a description which is consistent with that which Mr Bradshaw had indicated would have been his response, we can see no sensible basis for concluding that an award of £3,000 was so out of line with authority that it could be described as either erroneous in law or perverse.

14.	On the matters of review. The one matter which does not request a rerun of the issues which were raised before the Employment Tribunal, but did affect the question of quantum of damages was the production by the appellant of new evidence, namely a video, apparently recorded by the applicant during a Christmas celebration in 1997. The allegation is that in the course of the video she can be heard clearly using sexual swear words of an extreme kind in describing members of staff and directors. This was matter which was placed before the Chairman and he indicated that, as far as that was concerned, it would not have made the slightest difference on the decision of the tribunal. 

15.	We can see nothing at all in this point. We emphasise that the offensiveness of the document of 21st January did not emanate from any particular form of language which was used, but rather the allegation which was made which was not made in abusive language, effectively that the complainant was a prostitute, that she was a criminal, that she would be minded to try to pay off her fines by sexual favours, and that the source of this allegation was her boss, the Senior Partner, the person to whom, if she did have a complaint of harassment, she would be expected to have made her complaint. That is the nub of the offensiveness, not any colourful language that may have been used in the subsequent poem and therefore the fact that the complainant herself may have been familiar with or even the user of abusive language, would not in our judgment sensibly have caused any view as to the seriousness or the offensiveness of the allegations contained in the document to have been diminished, and therefore, in our judgment, the Chairman was perfectly entitled both as a matter of law and discretion in declining to review the decision on quantum on the strength of that new evidence.

16.	It therefore follows that we see no reasonably arguable basis for this limb of the appeal and we therefore dismiss at this stage of the proceedings the appeal against the decision of the Employment Tribunal both on substance and in respect of the review.