Appeal No.	EAT/1120/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 October 1999
Judgment delivered on 17 December 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR D J JENKINS MBE
MISS A MACKIE OBE

MRS B DRISKEL	APPELLANT

(1)	PENINSULA BUSINESS SERVICES LTD
(2)	MICHAEL HUSS
(3)	ANTHONY SUTCLIFFE
(4)	PETER DONE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised 17/2/2000

	APPEARANCES

For the Appellant	MR M DUGGAN
(of Counsel)
Messrs Aston’s Solicitors
The Stables
Manor Road
Staverton
Nr Daventry
Northamptonshire
NN11 6JD
	
For the Respondents	MR O BRABBINS
(of Counsel)
Messrs Steele & Co
Solicitors
2 The Norwich Business Park
Whiting Road
Norwich
Norfolk
NR4 6DJ	

MR JUSTICE HOLLAND:	

Introduction
1.	Mrs. Driskel is now aged 56.  In May 1994 she commenced employment with Peninsula Business Services Ltd (“Peninsula”) as an Advice Line Consultant.  Peninsula provide advice and advocacy services in connection with employment; seemingly Mrs. Driskel gave advice by telephone.  In September 1995 Mr. Huss became head of her department.  As head Mr. Huss was unpopular for various reasons with all or many of the persons in the department and with the passage of time there was a growing antipathy to him on the part of Mrs. Driskel, which antipathy became mutual.  Says Mrs. Driskel, Mr. Huss had a penchant for sexual banter and comments and she specifies incidents that involved them both as arising in respectively February 1996 (twice), April 1996 and June 1996.  On the 4th June 1996 there was advertised the post of Senior Advice Line Consultant (effectively the deputy to Mr. Huss).  Only Mrs. Driskel applied - Mr. Huss’s preferred candidate did not apply.  On the 11th July there was a further incident involving Mr. Huss and Mrs. Driskel;  on the 12th July the former interviewed the latter for the post.  The process was not brought to a proper conclusion:  Mrs. Driskel left the interview room and initiated a complaint of sexual harassment.  Mr. Done, as a managing director of Peninsula deputed Mr Sutcliffe, Director of Consultancy, to investigate and deal with the complaint.  There was some delay in reporting which led to Mrs. Driskel initiating a formal grievance on the 28th August - in the event the day on which Mr. Sutcliffe reported so as to reject her complaint.  There followed much ‘toing and froing’ with the upshot that Mrs. Driskel refused to work even as Senior Advice Line Consultant unless Mr. Huss moved elsewhere.  He refused to move; Peninsula took the view that he could not be made to do so.  Given impasse, Peninsula dismissed Mrs. Driskel for “some other substantial reason” on the 20th October 1996 with one month’s pay in lieu of notice.  All this impacted as follows.  By way of an IT1 dated 12th September 1996 Mrs. Driskel raised complaints against Peninsula, Mr. Huss, and Mr. Sutcliffe, alleging sexual discrimination and sexual harassment.  By way of an IT1 dated 22nd November 1996 she raised a complaint against Peninsula and Mr. Done, alleging unfair dismissal.  These complaints, seemingly supplemented with a complaint alleging sexual victimisation, were heard by an Industrial Tribunal sitting in Manchester on some ten days on and between the 8th September 1997 and the 23rd January 1988.  The parties received a Decision together with Extended Reasons on the 10th June 1998.  By way of the Decision all Mrs. Driskel’s complaints were dismissed.  She now appeals to this Tribunal.

The Extended Reasons

2.	It is necessary to make some early observations about the Extended Reasons.  The format is as follows:

a.	Paragraphs 1 to 11.  These specify the procedural history and identify, respectively, the parties, the witnesses and the issues, all in an admirable fashion.

b.	Paragraph 12.  By way of fifty-eight successive sub-paragraphs numbered (i) to (iviii), the facts are found and inferences are drawn.  The flavour can be adjudged from a sample sub-paragraph, say, (xi):

“(xi)  The Applicant’s next complaint against Mr. Huss was that on an occasion in or about February 1996, he had asked her about her dealings with a client, and when she relied “Oh dear, am I in trouble.” He had said “I can get you into trouble”.  She had then said “I can get myself into enough trouble thank you,” to which he relied “The sort of trouble I am thinking about, you could not get into yourself”.  Mr. Huss denied that this incident occurred;  and although the Tribunal considered that some such conversation may well have occurred, we were not satisfied that the words complained of were necessarily spoken in a sexual context, or represented a manner of speech which Mr. Huss, who was an aggressive manager, would not have adopted to any employee.”

It will be apparent that here, as in many other like paragraphs, the Tribunal is finding facts as to one incident and then immediately subjecting such to some ‘sexual discrimination’ analysis.

c.	Paragraph 13.  There is a succinct recital of Mrs. Driskel’s essential case.

d.	Paragraph 14.  There is a like recital of Peninsula’s case.

e.	Paragraph 15.  By way of forty successive sub-paragraphs numbered (i) to (xl) the Tribunal sets out its conclusions essentially by way of a re-run of Paragraph 12, albeit with less factual recital and more analysis.  Again, there is tendency to analyse incidents or conduct in isolation rather than expressing an overall view.  The nearest thing to the latter is sub-paragraph (xxxix):

(xxxix)  The Tribunal is required to consider all proper inferences which can be drawn from the evidence in a case of this kind, and we do not lightly dismiss a claim of this complexity without a full consideration of all of the evidence put before us.  However, the burden of proving her allegations is on the applicant to establish her claims of sexual discrimination, and the Tribunal must take an overall view of the strength of the case against each respondent.  In this case we were driven to conclude that the applicant had not discharged the burden of proof and had not established any of her claims against the respondents.  We are satisfied that the course of events in this case was not derived from acts of sexual discrimination or (where appropriate) victimisation, and was not in any event as the applicant sought to persuade us in her evidence, because we were satisfied that a number of her original allegations did not occur in the manner she described them.”

3.	Arising from this analysis, we venture the following comments.  First, the Tribunal (and more particularly the Chairman) may care to reflect on the format of the Reasons.  Given an identical style of composition and much overlap in content as between Paragraphs 12 and 15, argument in the appeal before us struggled as to use of the Reasons.  Was the point in Paragraph 12 or 15?  If so, when at (say) page 8 of our bundle which Paragraph were we looking at, given this repetitive use of Roman enumeration?  Had the facts been reiterated in one section free from any forensic analysis, with the latter reserved for a different section, the Reasons would inevitably have been shorter and more readily utilised.  Second, in all the 28 pages there is no recital of the law as it is to be applied - and given the length and complexity of the case a reminder as to the relevant principles and as to the resultant forensic issues might have been a valuable aid to analysis.  Third, it is a pity that the Tribunal was denied the guidance given by this Tribunal in the surprisingly unreported case, Qureshi v Victoria University of Manchester, 21st June 1996, EAT/484/95.  That Tribunal was similarly concerned with a case featuring a number of incidents arising in the course of a period of employment, each said to reflect racial discrimination.  It criticised the approach of the Industrial Tribunal which had been - as in this case - to make judgments, ‘discrimination or no’ with respect to each incident in turn.  The guidance given included the following:

“In the present case, it was necessary for the Tribunal to examine all the allegations made by Dr Qureshi of other incidents relied upon by him as evidentiary facts of race discrimination in the matters complained of.  There is a tendency, however, where many evidentiary incidents or items are introduced, to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint.  In the present case it was necessary for the Tribunal to find the primary facts about those allegations.  It was not, however, necessary for the Tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on “racial grounds” or on other grounds.  That is a misapprehension about the nature and purpose of evidentiary facts.  The function of the Tribunal is to find the primary facts from which they will be asked to draw inferences and then for the Tribunal to look at the totality of those facts (including the respondent’s explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on “racial grounds”.  The fragmented approach by the Tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds.  The process of inference is itself a matter of applying common sense and judgment to the facts, and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not.  The assessment of the parties and their witnesses when they give evidence also form an important part of the process of inference.  The Tribunal may find the force of the primary facts is sufficient to justify an inference of racial grounds.  It may find that any inference that it might have made is negated by a satisfactory explanation from the respondent of non-racial grounds of action or decision.”

Plainly this guidance holds good in a sexual discrimination case featuring a number of allegations - had it been followed it would have promoted a different and arguably more effective structure for the Extended Reasons, and for the judgments reflected in such.

4.	Similar guidance was given by this Tribunal in Reed and Bull Information Systems Ltd v Stedman (1999) 1RCR 299 at 302:

“It is particularly important in cases of alleged sexual harassment that the fact finding tribunal should not carve up the case into a series of specific incidents and try (to) measure the harm or detriment in relation to each.”

This Tribunal cited a decision of a U.S. Federal Appeal Court, such including the following:

“..... the trier of fact must keep in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate and that the work environment may exceed the sum of the individual episodes.”

Putting aside these comments, the Extended Reasons do reflect much energy and dictation on the parts of the Industrial Tribunal.

Sexual Discrimination

5.	On behalf of Mrs. Driskel, Mr. Duggan draws attention to the findings of fact made by the Tribunal that could and, he would say, should bear upon the complaint of sexual discrimination.  With respect to the incidents alleged as occurring in February 1996, April 1996, May 1996 and June 1996, the Tribunal had accepted Mrs. Driskel’s account and had rejected the denials of Mr. Huss.  Each incident essentially reflected some comment made about her by Mr. Huss with a sexual connotation.  This led up to the crucial incident of July 1996 and we cite the paragraph 12 findings and comments as follows:

“(xxiv)  The date of the applicant’s interview was delayed by both the applicant and Mr. Huss taking holidays, but it was eventually arranged to take place on 11 July 199.  It is common ground (and was never disputed by Mr. Huss) that on the evening before the interview was scheduled to take place, Mr. Huss said to the applicant that she had better attend the interview in a short skirt and see-through blouse, showing plenty of cleavage, and make an attempt (or possibly a vain attempt) to persuade him to give her the job.  The applicant contended that the use of the additional word “vain” make the remark worse than it would otherwise have been, but the Tribunal did not consider this a matter of particular significance, and we were left in no doubt that, whatever the precise words used, it was a tasteless and inappropriate remark which was directed to the applicant’s sex.
(xxv)  The applicant did not at that stage express any objection to the remark, though she later claimed to have been very upset by it;  and when she saw Mr. Huss in the office the next morning, she apparently remarked “You see, I am not wearing the see-through blouse or the mini, and I am not showing plenty of cleavage,” to which he replied “Well, that will have to do then, would you like some tea”, and she said “Yes”.
(xxvi)  It was the applicant’s evidence that she had drawn attention to the fact that she was not wearing the revealing clothing deliberately to give Mr. Huss the opportunity to apologise and to refer to the matter in front of a witness (Mrs. Lennon), but, even if this explanation were accepted at face value, what is clear is that she did not express any clear objection to Mr. Huss, either when he made the remark or the next morning, and that if (as the Tribunal accepted) he considered the remark to be purely jocular and incapable of being taken seriously, nothing in what the applicant said, or in her demeanour, would have indicated to him that she had taken it as a serious remark, or that she was deeply offended by it.”

6.	Why did not the Tribunal uphold the complaint of sexual discrimination on the basis of such findings?  Dealing with the pre-July allegations, the Tribunal found at several points in the Reasons a response typified in the following passages:

“15 (vii)  As appears from the finding of fact the Tribunal was satisfied on a balance of probabilities that on the occasions (that were material) ..... Mr. Huss made remarks of a sexual nature to or about the applicant but (for the reasons already set out) we were also satisfied that she made no objection at the time to the remarks and that Mr. Huss could not have known that she found them offensive and further, that she suffered no detriment from such remarks being made .....

15 (x)  The Tribunal therefore concluded that even though some of the remarks by Mr. Huss towards the applicant were capable of being interpreted as evidence of sexual harassment, the applicant did not satisfy us that she regarded them in that light when they occurred and did not suffer any detriment by reason of any of those remarks.”

7.	Turning to the July incident the relevant finding in paragraph 15 is:

(xii)  It is important to add that what Mr. Huss said to the applicant on the evening of 10 July was wholly inappropriate and unacceptable in a modern employment context, and was capable of being regarded as an act of sexual harassment (even if flippantly intended).  However, we accept the evidence of Mr. Huss that the remark was intended as a flippant remark, which could not reasonably have been taken seriously, and was not taken seriously by the applicant when the words were spoken.  Here again, we must consider the applicant’s reaction immediately after the remark was made.  The evidence of Mr. Barratt (which the Tribunal had no reason to doubt on this issue) was that she replied “Be warned, I may be in a skimpy outfit tomorrow”.  Yet again, no immediate objection was made to Mr. Huss, though if the applicant’s genuine reaction was the shock and horror which she described to the Tribunal, one would reasonably have expected an immediate objection, or at least a different response from the words quoted above.”

8.	It is Mr. Duggan’s submission that to make such findings, and in particular the finding with respect to the July incident the Tribunal must have misdirected itself as to the law.  Had the Tribunal specifically directed itself as to the appropriate approach to adjudicating upon a complaint of sexual discrimination its conclusion would have been different.  In response, Mr. Brabbins submits that by way of this part of the appeal, Mrs. Driskel was essentially seeking to reverse findings if fact that were properly open to it.

9.	All this begs the questions:  what is the law?  How should the Tribunal have applied it?

10.	The answers start, inevitably, with the Sex Discrimination Act 1975:

“Section 1(1)  A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if-
(a)  on the ground of her sex he treats her less favourably than he treats or would treat a man.
Section 6(2)  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-
(a)  in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefit, facilities or services, or by refusing or deliberately omitting to afford her access to them, or
(b)  by dismissing her, or subjecting her to any other detriment.”

11.	With that as the law, how is it to be applied by a Tribunal?  It is to be observed that those statutory provisions are identical, mutatis mutandis, to those in the parallel Race Relations Act 1976, Sections 1(1)(a) and 4(2)(b) and (c).  That inevitably conjures up the guidance given by the Court of Appeal relevant to these latter sections in King v Great Britain - China Centre (1992) 1CR 516, at 528:

“..... From these several authorities it is possible, I think, to extract the following principles and guidance.  (1)  It is for the applicant who complains of racial discrimination to make out his or her case.  Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.  (2)  It is important to bear in mind that it is unusual to find direct evidence of racial discrimination.  Few employers will be prepared to admit such discrimination even to themselves.  In some cases the discrimination will not be ill-intentioned but merely based on an assumption that “he or she would not have fitted in.”  (3)  The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.  These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.  (4)  Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination.  In such circumstances the tribunal will look to the employer for an explanation.  If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds.  This is not at matter of law but, as May L.J. put it in North West Thames Regional Health Authority v Noone (1988) I.C.R. 813, 822, “almost common sense.”  (5)  It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof.  At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts.  They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”

12.	In the course of argument we were additionally and helpfully referred to two decisions of this Tribunal specific to sexual discrimination:  Insitu Cleaning Co. Ltd v Heads (1995) 1RLR 4 and Read and Bull Information Systems v Stedman op. cit.  On the basis of the foregoing the Tribunal’s approach should be as follows:

a.	The Tribunal hears the evidence and finds the facts.  As has already been pointed out it is desirable not to include in this exercise judgments as to the discriminatory significance, if any, of individual incidents - judgment thus far should be limited to the finding of all facts that are prima facie relevant.  If ad hoc assessments ‘discrimination or no’ are made the result is a fragmented and discursive judgment; more importantly, there is the potential noted in Reed and Bull for ignoring the impact of totality of successive incidents, individually trivial.

b.	The Tribunal then makes a judgment as to whether the facts as found disclose apparent treatment of the female applicant by the Respondents as employers in one or more of the respects identified in Section 6(2)(a) and (b) that was less favourable than their treatment, actual or potential, of a male employee.

c.	The Tribunal further considers any explanation put forward on behalf of the Respondent employers.  In the light of any such explanation is the discrimination so far potentially identified, real or illusory?

d.	In making judgments under b. and c. above (and in practice these two stages may elide together) the following guidance is applicable:

(1)  Sexual harassment is helpfully categorised in Reed and Bull, op. cit. at 302:

“It seems to us important at the outset that ‘sexual harassment’ is not defined by statute.  It is a colloquial expression which describes one form of discrimination in the workplace made unlawful by s.6 of the Sex Discrimination Act 1975.  Because it is not a precise or defined phrase, its use, without regard to s.6, can lead to confusion.  Under s.6 it is unlawful to subject a person to a ‘detriment’ on the grounds of their sex.  Sexual harassment is a shorthand for describing a type of detriment.  The word detriment is not further defined and its scope is to be defined by the fact-finding tribunal on a common-sense basis by reference to the facts of each particular case.  The question in each case is whether the alleged victim has been subjected to a detriment and, second, was it on the grounds of sex.”

(2)  The finding of less favourable treatment leading to ‘detriment’ is one of fact and degree so that a single act may legitimately found a complaint, cf. Insitu Cleaning Co. Ltd, op. cit.

(3)  The ultimate judgment, sexual discrimination or no, reflects an objective assessment by the Tribunal of all the facts.  That said, amongst the factors to be considered are the applicant’s subjective perception of that which is the subject of complaint and the understanding, motive and intention of the alleged discriminator.  Thus, the act complained of may be so obviously detrimental, that is, disadvantageous (see Insitu, op. cit.) to the applicant as a woman by intimidating her or undermining her dignity at work, that the lack of any contemporaneous complaint by her is of little or no significance.  By contrast she may complain of one or more matters which if taken individually may not objectively signify much, if anything, in terms of detriment.  Then a contemporaneous indication of sensitivity on her part becomes obviously material as does the evidence of the alleged discriminator as to his perception.  That which in isolation may not amount to discriminatory detriment may become such if persisted in notwithstanding objection, vocal or apparent.  The passage cited from the judgment of the U.S., Federal Appeal Court is germane.  By contrast the facts may simply disclose hypersensitivity on the part of the applicant to conduct which was reasonably not perceived by the alleged discriminator as being to her detriment - no finding of discrimination can then follow.

(4)  In making its judgment a Tribunal should not lose sight of the significance in this context of the sex of not just the complainant but also that of the alleged discriminator.  Sexual badinage of a heterosexual male by another such cannot be completely equated with like badinage by him of a woman.  Prima facie the treatment is not equal:  in the latter circumstance it is the sex of the alleged discriminator that potentially adds a material element absent as between two heterosexual men.

(5)  Throughout the Tribunal should remain conscious of the burden and standard of proof.  That said, the notion that discrimination may well be covert and is not readily admitted is as applicable in the content of sex as in the context of race.  The passage cited from King v Great Britain - China Centre, op. cit., consistently proves authoritative guidance on these aspects.

13.	Had the Tribunal so directed itself as to the law would it nonetheless have dismissed the complaint made pursuant to the Sexual Discrimination Act 1975?  We are confident that the answer is ‘no’. 

14.	Thus:

a.	Had the Tribunal found all the facts before making a judgment, discrimination or no, it could not have avoided noting that with the exception of her first allegation (that of an alleged incident assault on her by Mr. Huss in February 1996) every finding had involved preferring her contention and rejecting Mr. Huss’s denial.  The fact that Mr. Huss had been so consistently and wrongly ‘in denial’ about the incidents complained of was a factor obscured to the Tribunal by its approach to the case but which was highly germane to the weight of his professed perception that Mrs. Driskel contemporaneously regarded all that she later complained of as acceptable sexual banter.

b.	We turn to the crucial incident of the 10th July 1996.  In our judgment had the Tribunal correctly directed itself as to the law it would first, have sought to put the incident in context, that is, as the latest in a line of incidents with “its predecessors”.  Second, it would readily have found that that which was complained of amounted prima facie to discrimination of a high order. She was in the unenviable position of having to seek promotion by way of a one to one interview with a man for whom she had an antipathy.  In such circumstances she was in receipt of remarks that in an appalling fashion sought to exploit the situation by reference to the sex of, respectively, interviewee and interviewer.  As in Insitu Cleaning, op. cit., that which was complained of was objectively prima facie discriminatory and it would need some exceptional findings to negate that inference by reference to the respective perceptions of Mrs. Driskel and Mr. Huss.  As it was, the Tribunal was heavily influenced by, Mrs. Driskel’s failure to make an immediate complaint without reminding itself that any instinct to complain must perforce be inhibited by the fact that she wanted the promotion that would come from the approval of Mr. Huss - and that she did in fact complain on the day following when she perceived that she had no chance of promotion.  Further and in any event, given the nature of the remarks how significant was any failure to complain?  Turning to Mr. Huss, the Tribunal’s finding in the already cited paragraph 15 (xii) that the remark was flippant and was not meant to be taken seriously effectively misses the point.  It is irrelevant that he never expected her to turn up for the interview in sexually provocative dress - what is relevant is that by this remark (flippant or not) he was undermining her dignity as a woman when, as a heterosexual, he would never similarly have treated a man.  Again, the Tribunal seriously misdirected itself in putting any weight on Mr. Huss’s sexual vulgarity towards male employees for the reasons already set out in this judgment, that is, that being heterosexual that which he said was to men was vulgar without being intimidatory.

15.	We allow so much of the appeal as related to the dismissal of Mrs. Driskel’s complaint of sexual discrimination made against Peninsula and Mr. Huss.  What follows?  We are unwilling to remit this matter for a fresh hearing given the presently available material and given that which would be involved in terms of time, cost and expediency in re-litigating events of 1996 in 2000.  We therefore hold the complaint to be proved so afar as it relates to the discrimination of the 10th July 1996.  If the parties cannot agree compensation for such, the case will have to be remitted to the Tribunal (hopefully with the same constitution) for an assessment.  We dismiss so much of the appeal as lies against the finding in favour of Mr. Sutcliffe.

Unfair Dismissal and Victimisation

16.	Mr. Duggan further submits that the Tribunal’s rejection of Mrs. Driskel’s complaint of unfair dismissal similarly reflected an error of law, as is the associated dismissal of her complaint of sexual victimisation.  His essential point is that once there is a finding of sexual discrimination in her favour, with Mr. Huss identified as the discriminator, there is a premise for upholding her complaints, which premise was denied to the Tribunal given its dismissal of the sexual discrimination complaint.  Thus far we have not burdened this already long judgment with a full exposition of so much of the Extended Reasons as dealt with Mrs. Driskel’s further case and the disposal of it - and in the event we think that we can conscientiously avoid such and still deal properly with this second leg of the appeal.  Suffice it to note that the Tribunal made a very full factual investigation of the events flowing from Mrs. Driskel’s first complaint of July 1996 to her dismissal on the 21st October 1996 and thence onward to the adverse conclusion of her appeal against dismissal to Mr. Done.  We note further the subsequent and parallel discussion of this history in paragraph 15 such as serves clearly to show the reasoning of the Tribunal.  Central to the decision was its finding that by the 21st October 1996 the Respondents had by way of Mr. Sutcliffe’s enquiry made a genuine investigation into Mrs. Driskel’s complaint and one upon which they as employers were entitled to rely.  Similarly crucial were further findings.  Such were that the Respondents had genuinely tried to accommodate Mrs. Driskel with acceptable employment but had found themselves manoeuvred by her into an unacceptable impasse:  if they were to accommodate her they had to dismiss Mr. Huss, and vice versa.  It was in the light of those findings coupled with a finding that Mr. Sutcliffe had “genuinely sought to persuade both parties to moderate their position” that moved the Tribunal to find:

“(xxxii)  In the circumstances, Mr. Sutcliffe acted within the band of reasonable responses of a reasonable employer when he gave notice to the applicant on 10th October 1996 that her employment would be terminated if she did not agree to return to the Advice Line Department whilst Mr. Huss remained as manager, and the Tribunal accepted that the reason for this step fell within the category of “some other substantial reason” within the meaning of Section 98(1)(b) of the Employment Rights Act 1996.
(xxxiii)  It is central to the fairness of the procedure adopted by Peninsula that this was not a dismissal based on the applicant’s conduct, and did not fall within the written disciplinary procedure.  The Tribunal accepted that it was clear to Mr. Sutcliffe (as it was to the Tribunal) that when he finally confirmed the dismissal by letter dated 17 October 1996, no purpose would have been served by arranging any further meeting with the applicant because no realistic option short of dismissal existed which she would have been prepared to consider.
(xxxiv)  We therefore satisfied that (by reason of its own peculiar facts) this was one of those rare cases in which the employer could justify the dismissal of the applicant without the necessity for a formal meeting or hearing before the decision was taken.
(xxxv)  It follows from the above that the dismissal of the applicant was a fair dismissal in the circumstances of this case, and that Mr. Sutcliffe (and Peninsula) acted reasonably in taking the decision to dismiss and in the manner in which the dismissal was effected,”

17.	We have examined this fact finding and reasoning with care, in particular seeking to assess whether our contrary assessment of the significance of Mr. Huss’s behaviour on the 10th July serves to undermine the Tribunal’s approach.  In the event we cannot fault the latter, whether on its premises, or on our own.  Let it be supposed that the Tribunal had found sexual discrimination that cannot mean that the position of Mr. Huss was so weakened that Mrs. Driskel’s demands would not still have posed a impasse soluble only by dismissal of one or other.  We do not think that this part of the Extended Reasons reflected any error of law and we think that the Tribunal was entitled to regard the dismissal as fair and untainted by victimisation.

Conclusion

18.	So much of the appeal as relates to sexual discrimination by Peninsula and Mr. Huss is allowed with disposal as already set out.  The balance of the appeal is dismissed.