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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Thomas Sanderson Blinds Ltd v. English [2011] UKEAT 0316_10_2102 (21 February 2011) URL: https://www.bailii.org/uk/cases/UKEAT/2011/0316_10_2102.html Cite as: [2011] UKEAT 0316_10_2102, [2011] UKEAT 316_10_2102 |
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At the Tribunal | |
On 21 February 2011 |
Before
HIS HONOUR JUDGE RICHARDSON
MR D BLEIMAN
MR T MOTTURE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS SHIRLEY BOTHROYD (of Counsel) Instructed by: Bolitho Way Solicitors 13-18 Kings Terrace Portsmouth PO5 3AL |
For the Respondent | MR MARCUS PILGERSTORFER (of Counsel) Instructed by: Dean Wilson Laing LLP Solicitors 96 Church Street Brighton BN1 1UJ |
SUMMARY
SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
PRACTICE AND PROCEDURE – Review
Harassment on grounds of sexual orientation. The Tribunal directed itself correctly in looking at the Claimant's own perceptions and feelings in order to decide whether the alleged unwanted conduct had the effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Richmond Pharmacology v Dhaliwal [2009] IRLR 336 applied. Claimant's appeal dismissed.
Review. The Tribunal reviewed its earlier judgment on the grounds that there was an issue, A2, which it had not considered. However it was clear from the procedural history that issue A2 was not argued by the Claimant at the September hearing, and in particular that the way in which the Tribunal interpreted issue A2 (as a racially discriminatory constructive dismissal) had been positively disavowed in 2007 and was never argued at the September hearing. In those circumstances there was no proper basis for the Tribunal to hold a review.
HIS HONOUR JUDGE RICHARDSON
The Background Facts
"On a lighter note on Saturday I went to Steve's house to pick up some paperwork. He said he had to hurry as he was on his way to the Brighton Gay Pride Procession. Guess what? He was wearing a Royal Jacquard shirt and skin tight lycra cycling shorts. Enough said. I hurriedly left".
"This constant innuendo must stop. I would like assurances when I attend national sales meetings there will be no further mention of this in any shape or form. Also there will be no further mention of this in the newsletters published by the company. In the nine years that I have been with the company there has been much banter of which I have also taken part. For my part on one or two occasions when I have overstepped the mark have made profuse apologies usually accompanied with a gift. I expect no less courtesy to be extended to me.
Although to my knowledge there is no gay element in the sales force imagine how a person might feel on hearing these remarks directed at a totally heterosexual happily married man. he or she would live in constant fear.
Whilst my wife and children do not attend the sales meeting for nine years they have been avid readers of the newsletter and this is now causing them extreme embarrassment and distress."
"I have held a team meeting at my house this morning and informed them of the situation with regards to my complaint and Steve Saunders letter to myself. I feel I am now in an untenable position so with immediate effect I offer my resignation as area sales manager/designer. I have handed the team over to Bill Stephenson who I am sure is more than able to look after things until a new manager is installed."
"4.18 In evidence, the Claimant gave his reasons for resignation to be the fact that he felt that he would be regarded as the school sneak and that his position was therefore untenable although, as we have said, he accepted that the Respondent was right to have dealt with it in the way that they had, at least until that date."
Harassment
"5 Harassment on grounds of sexual orientation
(1) For the purposes of these Regulations, a person ("A") subjects another person ("B") to harassment where, on grounds of sexual orientation, A engages in unwanted conduct which has the purpose or effect of -
(a) violating B's dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect."
"5.12 The key question, then, here is whether Mr English also found the comments or articles harassing within the meaning of regulation 5. He says that he did and there are two pieces of objective evidence which support his view. First, his complaint to Bill Stevenson about the August 2005 article and, secondly, his email of 19 August to Mr Saunders on page 66 of the C1 and the other documents leading to his resignation on 26 August."
"5.15 In our view, all that the Respondent says is right, but up to a point. The point was the August 2005 article written by Mr Stevenson. That appears to have been read by his family, as is evident from the document at page 66. That appears to have provoked the email to Mr Saunders and that in our view, did really upset him. He felt that the article, to use his own expression, 'had overstepped the mark'.
5.16 Our conclusions are therefore that the articles and banter and name calling did not, up until August 2005 in the Claimant's eyes, have the prohibited effect of either violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. We simply cannot accept that the Claimant would not have complained and would have been so friendly with his tormenters if that had been the case. We have considered whether the old adage 'keep your friends close but your enemies closer' may have applied to their relationship, but we do not accept that the Claimant's friendships, particularly with Mr Cannell, was an example of that adage applying here. He said himself that it was a genuine friendship.
5.17 We have also considered the ACAS leaflet on harassment and whether the Claimant's actions in engaging in the banter himself might have been retaliation for harassment that he was suffering, but we also reject Mr Wilson's submissions to that effect.
5.18 And so, for the reasons we have explained, the article in August 2005 did have a degrading effect in the Claimant's eyes and would objectively be seen as such. Insofar as that was concerned, we do not accept Miss Bothroyd's submissions that the email written at page 66 did not contain the Claimant's genuine feelings. The article appears to have been a tipping point and something that exceeded what the Claimant considered to have been the acceptable level of personal attack and insult. The Claimant's claim therefore succeeds, but only in relation to the August 2005 article.
5.19 We should point out the Claimant has done himself no favours, both in relation to the evidence that he gave to us on the last occasion, but also in respect of his own extremely offensive behaviour whilst at work. It has been that behavior that has, at least in part, led us to the view that the conduct that he experienced did not cause him the prohibited consequences within the meaning of regulation 5."
"15. Thirdly, although the proviso in sub-section (2) is rather clumsily expressed, its broad thrust seems to us to be clear. A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That, as Mr Majumdar rightly submitted to us, creates an objective standard. However, he suggested that, that being so, the phrase 'having regard to ... the perception of that other person' was liable to cause confusion and to lead tribunals to apply a 'subjective' test by the back door. We do not believe that there is a real difficulty here. The proscribed consequences are, of their nature, concerned with the feelings of the putative victim: that is, the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a 'subjective' element; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. See also our observations at paragraph 22 below."
"22. We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase."
Harassment and Time
Failure to consider a Direct Discrimination Claim
The Review
"In my view this behaviour constitutes harassment contrary to Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003. In short this conduct has violated my dignity. I feel that I have been discriminated against contrary to Regulation 8 of the 2003 Regulations in that I have been subjected to a detriment that has led me to resign and lose well remunerated employment."
"For the purposes of the claim under the Employment Equality (Sexual Orientation) Regulations the Claimant argues that the termination of the contractual arrangement between the Claimant and the Respondent having taken place on 26 August 2005, that termination which was brought about by the resignation of Mr English, is the final act of detriment and that the claim was therefore lodged within three months of such final act. The Respondent disputes this in that it contends that the resignation was not the final act of detriment but rather that the alleged final act was the publication of an in-house magazine in early July 2005 and that, therefore, the claim is out of time."
"(d) This case is pleaded on two bases namely harassment contrary to regulation 5 and detriment in the form of any other detriment contrary to regulation 6.
(e) The word "dismissing" clearly envisages a traditional employment situation and could either be actual or constructive dismissal. It is accepted that neither concept applies in the case of the Claimant who was not a conventional employee but nevertheless is protected by virtue of these Regulations.
(f) His claim is therefore that he was both harassed within the meaning of the Regulations prior to the termination of his contract with the Respondent and was subjected to a detriment namely suffering an unpleasant working environment and being forced to resign his position as a result of this behaviour."
"The simple fact of the matter is, however, that this was a claim raised in the ET1 Claim Form and it has never been withdrawn or dismissed nor has it been adjudicated upon. It falls to us to do so now on the basis of the facts that we found at the previous hearing, as Mr Wilson [solicitor for the Claimant] agrees."
Direct Discrimination – the Tribunal's Reasons
The Granting of a Review
"If … due to an oversight or to some procedural occurrence one or other party can with substance say that he has not had a fair opportunity to present his argument on a point of substance, then that is a procedural shortcoming in the proceedings before the tribunal which, in our view, can be correctly dealt with by a review under rule 10 of Schedule 1 to the Industrial Tribunals (Rules of Procedure) Regulations 1980, however important the point of law or fact may be In essence, the review procedure enables errors occurring in the course of the proceedings to be corrected but would not be normally be appropriate when the proceedings had given both parties a fair opportunity to present their case and the decision had been reached in the light of all relevant argument."