Bracebridge Engineering Ltd v Darby
© [1990] IRLR 3


BRACEBRIDGE ENGINEERING LTD (appellants)V
DARBY (respondent)

irlr

200

Unfair dismissal


224.9

Was employee dismissed? - employer repudiation/constructive dismissal - other circumstances entitling the employee to terminate


600

Sex discrimination


618

Sexual harassment


637

Discrimination by employers - other detriments


645

Liability of employers and principals

Sex Discrimination Act 1975 sections: 1(1)(a), 6(2)(b), 41(1)
Employment Protection (Consolidation) Act 1978 section: 55(2)(c)

The facts:

Mrs Darby had been employed for 13 years by the appellants, a small company with some dozen staff. On 11 November 1987, she was about to wash her hands before finishing her shift when she was grabbed by her chargehand (Mr Daly) and the works manager (Mr Smith) and taken to the works manager's office. The lights were put out and Mr Smith picked up her legs and put them around him. she tried to get away but was threatened with a written l warning for leaving early. Mr Daly then put his hands between her legs and touched her private parts remarking "you've got a big one". She was eventually able to open the door and run out. The following morning Mrs Darby complained to the general manager, Miss Reynolds. However, as both Mr Daly and Mr Smith denied ;the incident, Miss Reynolds decided that no steps should be taken.

Mrs Darby regarded this as wholly unsatisfactory and resigned l a week later on grounds of her treatment. She complained that she had been constructively dismissed and unlawfully discriminated against on grounds of sex. An Industrial Tribunal upheld both complaints. It awarded £3,900 compensation for unfair dismissal {and £150 compensation for sex discrimination. The employers l appealed against both the finding of sex discrimination and of unfair dismissal.

The Employment Appeal Tribunal (Mr Justice Wood-MC (P), Mr R J Lewis, Miss A P Vale) on 27 April 1989 dismissed l the appeal.

The EAT held:

irlr {618} {637} {645}

The Industrial Tribunal had not erred in finding that the respondent had been unlawfully discriminated against by the appedant employers, contrary to s.6(2)(b) of the Sex Discrimination Act, by reason of having been sexually harassed by-her chargehand and works manager.

The Industrial Tribunal was entitled to find that a single act of sexual harassment was a "detriment" to the complainant within the meaning of s.6(2)(b), notwithstanding the dictionary definition of "harassment" as a continuing course of conduct. A single incident of sexual harassment, provided it is sufficiently serious, clearly falls within the proper intention and meaning of the statute as it is an act of discrimi- nation against a woman because she is a woman.

Nor had the Industrial Tribunal erred in finding that the "detriment" suffered by the respondent was in the context of her employment so as to fall within s.6(2)(b) since the harassers, the complainant's chargehand and works manager, were involved in disciplinary supervision.

Similarly, the Industrial Tribunal had correctly concluded that the acts perpetrated by the harassers were acts committed in the course of their employment since they were engaged in exercising, or in the course of exercising, a disciplinary and supervisory function.

{224.9}

The Industrial Tribunal had correctly concluded that the respondent employee was entitled to resign and treat herself as having been constructively dismissed by reason of the employers' failure to treat her allegation of sexual harassment seriously.

The implied contractual term relating to mutual trust, confidence and support is an extremely important one for female staff in a case such as the present where sexual discrimination and investigation are concerned. Given its findings of fact that the respondent had been greatly upset and suffered shock and trauma as a result of the incident and that she complained that the incident had not been treated with the seriousness and the gravity with which it should, the only conclusion to which the Industrial Tribunal could have come was that there had been a constructive dismissal.

Cases referred to:
De Souza v The Automobile Association [1986] IRLR 103 CA
Porcelli v Strathclyde Regional Council [1984] IRLR 467 EAT
Aldred v Nacanco [1987] IRLR 292 CA
Rose v Plenty [1976] IRLR 60 CA
Irving v The Post Office [1987] IRLR 289 CA
Western Excavating (ECC) Ltd. v Sharp [1978] IRLR 27 CA

Appearances:
For the Appellants:
Mr R de MELLO, instructed by Lovsey Hayward & co
For the Respondent:
Ms V GAY, instructed by Birmingham District Citizens Advice Bureau

  1. MR JUSTICE WOOD (PRESIDENT): Mrs Darby was employed and had been employed for some 13 years by Brace bridge Engineering Ltd which was a small company employing about a dozen personnel. Mr Reynolds was the chairman, his daughter was the general manager, a Mr Smith was the works manager and a Mr Daly was the chargehand. As a result of an incident that took place on 11 November 1987 - the Wednesday - she left her employment there on the following Wednesday,25 November 1987 * and subsequently issued an originating summons alleging two things. First of all a breach of the Sex Discrimination , Act 1975 and, secondly, constructive dismissal.
  2. These issues were heard during January and February 1988 at Birmingham by an Industrial Tribunal under the chairmanship of Mr Delgado. They found that there had been an act of discrimination under the terms of the Sex Discrimination Act and awarded the applicant £150 compensation. They also found that she had been constructively dismissed, that such dismissal was unfair and awarded her compensation of £2,900 subject to the recoupment regulations.
  3. The work carried out by Mrs Darby is not important in its detail, but she was allowed to finish work at about 4.30 each day. On Wednesday 11 November, shortly after a quarter past four, she was making her way in accordance with company practice, to dispose of her gloves, wash her hands and get herself ready before actually ending her stint at 4.30. There had been some previous incidents when perhaps she had gone offwork a little early. Mr Smith and Mr Daly were responsible for supervising the time-keeping and on this occasion they were to hand as she was making her way to wash her hands and take off her gloves.
  4. The incident which occurred was in the office of Mr Daly, the chargehand. The Tribunal had before them virtually diametrically opposed versions of what occurred. They found themselves in a difficult position - but not a particularly an unusual one for any court or tribunal - of having to make up their minds whom to believe. In the end they accepted that Mrs Darby was a truthful woman and in essence they accepted her version of what had occurred; not only the incident but thereafter at an investigation which was carried out by Miss Reynolds.
  5. The facts therefore, taking it from the evidence given by Mrs Darby to the Tribunal, can really be shortly stated, without every single detail, in the following way. As she was going to wash her hands she was approached by Mr Smith and Mr Daly. Mr Smith indicated that she could not go to the canteen. She said she had no intention of going, but was going to wash her hands. They then, both of them, picked her up. Mr Daly grabbed her around her arms, Mr Smith grabbed her legs and they took her to Mr Daly's office nearby. She was allowed to regain her feet before they went through into the office. At that point Mr Daly put the light out, Mr Smith picked up her legs and put them around him. She shrugged him off and let her legs go and tried to get up but he put his foot by the door. she was threatened with a written warning for trying to go early. She denied that this was so and she said that Mr Daly had put his hands between her legs and touched her private parts remarking 'you've got a big one'. She was able eventually to open the door and run out. After shouting she was going to report the incident they replied it would be her word against theirs. That is the summary of what occurred in that office.
  6. She made an immediate complaint to a Mrs Merritt and was advised by Mrs Merritt to report the matter to Miss Reynolds, the general manager. Mrs Darby also told another colleague, Tina, who advised her similarly, but as Miss Reynolds was not in the factory she thought there was no one to report it to on that evening and went home. she felt disgusted and degraded; she spoke to her sister about this saying that she really felt that she could not go back. She was crying and upset when telling her sister about it.
  7. The following morning, the Thursday, she did make a complaint at 8.30 in the morning to Miss Reynolds about what had happened. Miss Reynolds made some enquiry and decided, in the Light of the denials from both Mr Smith and Mr Daly, that no steps should be taken. Mrs Darby felt that that was wholly unsatisfactory and she in fact left a week later, on Wednesday 20 November, saying in effect that if she was to be treated in this way she could not really feel that she was obtaining justice at a proper enquiry and that she therefore felt that she had been constructively dismissed.
  8. To deal with the sex discrimination issue first. The allegation was that there had been a breach of the provisions of s.6(2)(b) and s.1 of the 1975 Act. The Act complained of was alleged to fall within this wording in s.6(2)(b):
    'It is unlawful for a person in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her . . . (b) by dismissing her, or subjecting her to any other detriment'.
    The detriment and the discrimination is being treated less favourably within the definitions sections. The Tribunal found that this assault upon her, the incident in the office was a detriment and that within the wording of s.6(2)(b).
  9. {618}
    The first point taken by Mr de Mello for the appellant company before us is that this was a single act, a single incident and it cannot properly be described as sexual harassment. He referred us to the definition in the Shorter Oxford English Dictionary. It seems to us that 'sexual harassment' is a phrase which can embody a whole number of notions. It would seem that whether or not harassment is a continuing course of conduct, there was here an act which was an act of discrimination against a woman because she was a woman, and it was a most unpleasant one, and one which in our judgment clearly falls within the proper intention and meaning of the Act. We would deplore any argument that could be raised that merely because it was a single incident - provided it is sufficiently serious, I think one must say that - that it could not fall within the wording of the subsection.
  10. {637}
    The second point taken is that the detriment needs to be in the context of employment. The wording of s.6(2)(b) has been the subject of a number of cases. One of the issues which ultimately will have to be decided is whether there is any sort of limitation to those words at the end of that phrase. Although not strictly necessary for the decision, that part of the section was considered in De Souza v Automobile Association [1986] IRLR 103 by the Court of Appeal presided over by Lord Justice May. It is unnecessary for us to deal with the difficult point of construction on the Act as it is drafted, although we are quite satisfied that sexual harassment as it is called should fall within the Act as to whether - and to what extent - detriment must be connected with the employment or the termination or disciplinary aspects of employment, because in this case it is abundantly clear that Mr Smith and Mr Daly were involved in what might be termed disciplinary supervision. When one looks at the judgment of Lord MacDonald at first instance in the case of Porcelli v Strathclyde Regional Council [1984] IRLR 467, he expressed the view that in connection with that subsection the action being taken could be:
    'suspension, warning, enforced transfer, etc all of which would be to the detriment of the female employee although open to an employer under her contract of service in a genuine case not associated with sexual harassment'.
    A reading of his judgment indicates clearly that the background circumstances of this case would fall within the understanding. Although Lord Justice May felt in De Souza that Lord MacDonald had been a little restricted in his view, it is unnecessary for us to decide whether that was necessary to the decision in De Souza because this case clearly falls within the words used by Lord MacDonald. We therefore reject the suggestion that this was not sufficiently connected in the present case with the employment L context.
  11. The third point taken by Mr de Mella was that the acts perpetrated by Mr Smith and Mr Daly were not acts committed in the course of their employment. He emphasises the importance of considering the phrase 'course of their employment' from two aspects. First he submits that the presence of the existence of s.41 of the Act emphasises that there is provided a defence to employers for acts which are either not within the course of employment or when under s.41(3) there is a defence; a statutory defence that the employers have done all that is reasonably practicable to prevent the act of discrimination which is the subject matter of the proceedings. But secondly he submits that on a proper understanding of s.6 itself, and in particular s.6 subsection 2, the whole ambit of the provisions of that subsection are in the employment context, and therefore unless the act was committed in the course of the employment, it might very well not come within subsection 2. As anyone knows the problems of that phrase have been the subject of consideration by the courts and academics over many years.
  12. For our present purposes we would refer first to Aldred v Nacanco [1987] IRLR 292. The issue there was whether someone had suffered an injury as a result of an incident in a washroom. The facts are not important for our present purposes. The Court of Appeal consisted of the learned Master of the Rolls, Sir John Donaldson, Lord Justice Glidewell and Sir Frederick Lawton who gave the leading judgment. The learned Master of the Rolls, when he came to give his judgment last, impressed upon us that it was not always useful to look at a multitude of cases but to go back to basic principles. He said this towards the end of his judgment:
    'I mention this matter merely in the hope that in future cases the classic test, namely that to which my Lord Sir Frederick Lawton referred, which is set out in the 18th edition of Salmond on Torts, will be applied. If one applies it to the facts of this case and one takes account, as the learned editor rightly says one has to take account of all the factors, such as time, place and the nature of the act, whether it was for the benefit of the employer, whether it was an intentional act, whether it was lawful or unlawful, whether it was wilful or malicious, whether it was expressly or impliedly authorised by the employer and so on, I have no doubt that the unauthorised and wrongful act of Miss Perry was not so connected with the authorised act of going into the washroom for the usual purposes, and that the mode of doing it was an independent act.'
  13. In referring to the judgment of Sir Frederick Lawton, he was referring to this passage which I will now read. The learned former Lord Justice said this:
    'I have no hesistation in saying that the correct principle of law to be applied is that set out in the 18th edition of Salmond on Torts at p.437. The statement of law there is what I have long believed to be the correct one The editors of the 18th edition say that the particular passage to which I am going to refer has been accepted by the courts at various levels, including the House of Lords, over many years. The passage is in these terms:
    "It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has authorised that they may rightly be regarded as modes - although improper modes - of doing them. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it. If a servant does negligently that which he was authorised to do care- fully, or if he does fraudulently that which he was authorised to do honestly, or if he does mistakenly that which he was authorised to do correctly, his master will answer for that negligence, fraud or mistake. On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it"'.
  14. We were also helpfully referred to the case of Rose v Plenty [1976] IRLR 60, and in particular to passages from the judgment of Lord Justice Scarman, as he then was. Also to the more recent case in the Court of Appeal Irving v The Post Office [1987] IRLR 289 which it will be remembered was the case where the post office worker had written abusive and racist comments on an envelope. In particular there we were helped by the judgment of Mr Justice Sheldon reciting a number of authorities and pointing out that there was, in many cases, an element of public policy in the problems involved in applying these principles. The case here perhaps could be looked at in this way. The Tribunal having had no doubt about this matter and indeed indicating that it was not seriously argued before them, that these two were engaged in exercising or in the course of exercising a disciplinary and supervisory function. In our judgment the issue is essentially one of fact once the proper principles are applied. The Tribunal were the judges of fact, although they have not given themselves a long direction on the law. They have said this:
    'The next question to determine is that of vicarious liability. In fairness to Mr Wilson for the respondents he has not sought to argue this point. The matter is dealt with in s.41. We have little hesistation in concluding the respondents are liable for the acts of their employees which were done in the course of their employment'.
    {618} {637} {645}
    The two lay members sitting with me with their experience of the workings in industry both on the shop floor and generally, have no doubt that in the picture which they envisage here, this act was perpetrated in the course of the employment of these two men. We accept the findings of fact of the Tribunal, and are satisfied that the findings here fall on the correct side of the law upon the principles laid down in the authorities which have been cited. These men were involved in carrying out their functions as part of their employment. It follows therefore that so far as the points taken and argued on the Sexual Discrimination Act we find that there is no flaw in the way in which the Tribunal dealt with this matter and the learned chairman directed the Tribunal upon it. That part of this appeal fails.
  15. There is however the second limb. The second limb is the issue of constructive dismissal. The Tribunal dealt with it late in their decision after the findings of the fact about the enquiry. The enquiry was carried out by Miss Reynolds who has some 10 years' experience as the general manager. She saw the applicants Mrs Darby, on two occasions. First of all on her own and later with the men involved. The Tribunal find that the enquiry was rather superficial. Their summary is to be found in paragraphs 27-29 of the decision They deal with it in this way. They said:
    'The applicant goes on to complain of constructive dismissal and that that dismissal was unfair. What she is in effect saying is that following these incidents she made a complaint, but her allegations were not treated seriously and she felt compelled to terminate her employment. This brings us to the interview with Miss Reynolds. The first point is the extent of the applicant's complaint at the time. she complained of being carried by Mr Smith and Mr Daly to Mr Daly's office, and Miss Reynolds was told of the assault there by Mr Daly. The applicant believes that she also mentioned the further assault by Mr Smith in the of Vice. We take the view that even if that were not so, Miss Reynolds did receive complaints of serious misconduct involving both men.
    'According to the company's own disciplinary procedure (which has been produced) Miss Reynolds ought to have been aware that such an allegation could have led to her suspending Mr Smith and Mr Daly and should in any event have led to a full investigation. The complaints sere of assaults with sexual overtones which made them extremely serious. The view that we take is that the enquiry by Miss Reynolds was not an indepth enquiry following serious allegations. It may be that at the end of the day Miss Reynolds felt that in the circumstances she had done her best. We feel that she was too easily persuaded that there was insufficient evidence to substantiate the claims. Had there been a full investigation enquiries might have been made of Mrs Merritt and Tina to whom the applicant immediately complained. It would have been necessary to enquire whether the applicant had been guilty of misconduct in attempting to leave early. As it was Miss Reynolds accepted this to be so without any investigation and that Mr Smith was correct in speaking to the applicant.
    'We feel at the end of the day the applicant was entitled to say her allegations had not been treated as seriously as they ought. That on the other hand she was being reprimanded without the complaint against her being enquired into. she was entitled to take the view her allegations were being brushed aside'.
    Then they accept her evidence that at the end of the incident she was disgusted. They felt that she was entitled to be disgruntled and then they go on:
    'We feel taking into account the particular circumstances including the nature of the events, her long service to the respondents and the inadequacy of the enquiry she was justified in terminating her contract of employment. We find she left because of the conduct of the respondents within s.55(2)(c) of the Act. For these reasons we find the applicant was constructively dismissed and that dismissal was unfair. We uphold her complaint'.
    They then assessed compensation.
  16. Mr de Mello criticises the directions which the Tribunal gave itself on the issue of constructive dismissal. He points to the phrase referring to the conduct of the respondents and to s.55(2)(c) of the 1978 Act. We hope we sufficiently summarise his argument in this way. He submits that the Tribunal have fallen into the trap which existed before the decision in the Court of Appeal in Western Excavating v Sharp [ 1978] IRLR 27 where the Court of Appeal dealt with the two arguments of constructive dismissal: one whether it was based on the reasonable attitude of the employer and the other where it was based on strictly contractual basis. It was resolved in that case that the proper basis was the contractual basis; one therefore needs to look to see what were the terms of the contract and what was the fundamental serious or important term of which there was a breach and which was of sufficient severity that the employee was entitled to say 'that indicates that I cannot properly continue under the terms of the contract', and to accept that repudiation which acceptance needed to be made within a reasonable time. We repeat that principle without looking in detail at the wording of Lord Denning in that case. The submission here is that the Tribunal failed to make the proper approach.
  17. {224.9}
    We were told that in fact Western Excavating was cited to the Tribunal and in any event it is well known that the learned chairman of this Tribunal is extremely experienced. It may be because in their Reasons they dealt at great length and necessary length with all the factual background and the details of the case that when the came to deal with constructive dismissal they dealt with it in paragraph 30 quite shortly right at the end of the judgment. Had the matter not been preceded by the sexual discrimination problems and the findings of fact, the reasoning might have been set out at greater length. Therefore, looking at these decisions as a whole, although the wording is capable of criticism we feel that the learned chairman, especially as Western Excavating was cited to him, in fact was well aware of the principles involved and did apply them. But lest there be any feeling that the matter has not been sufficiently investigated here on be- half of the company, it is right to say this: that the findings of fact were perfectly clear. If the Tribunal had directed itself in extenso in law then it would have asked itself whether on the facts as found by the Tribunal the term whereby the mutual obligation, trust, confidence and sup- port and the obligation not to undermine the confidence of the female staff had been breached. In a case of this nature where sexual discrimination and investigation are concerned it is an extremely important one for the female staff.
  18. The findings of fact were that this lady, Mrs Darby, had clearly been greatly upset and suffered shock and trauma as a result of this extremely unpleasant incident in the office of the chargehand. She made her complaint that it had not been treated with the seriousness and the gravity which it should. The Tribunal found on the facts that there had been a breach of that term. Thereafter the question would have been 'had it been accepted as repudiation?' and that followed a week later when Mrs Darby left. Thirdly, they decided was it a reasonable period of time in which she had to make up her mind. It seems again to those sitting with me with experience of situations such as this, that it was evidently reasonable that she should be allowed a week in which to decide about it, the more especially as she might have been waiting for the chairman, Mr Reynolds, to return and he did not return until just after she had left. In the circumstances, therefore, if properly directed we have no doubt that the only conclusion to which the Tribunal could have come on its finding of fact was that there had been a constructive dismissal.
  19. Mr de Mello also raised a question of the applicant dealing with a grievance procedure and criticised her for not so doing. We have doubts whether that comment is applicable in this particular case because she was in a state of shock and as was found she acted reasonably in the circumstances- it is a little difficult to see what else she could have done. But in any event if one looks at the words of the strict procedure, she did what she could because the first stage of the complaint would have been to the two men of whom she was complaining; the second stage was to Miss Reynolds and she did it; the third stage was to Mr Reynolds, the chairrnan, and he was away at the time. It follows, therefore, in our judgment there was no failure even if she was under a duty, which we doubt, to go through the grievance procedure in the light of what happened at stage one. To go further there is no breach. It follows therefore, for all those reasons and without closing before expressing our appreciation for the way this matter has been argued on both sides, this appeal must be dismissed.