Appeal No.  UKEAT/0445/05/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
                                                                                                              On 18 January 2006

							    Judgment delivered on 2 March 2006

Before
HIS HONOUR JUDGE J R REID QC
MS K BILGAN
MS H PITCHER

MISS E J SPENCER	APPELLANT

PRIMETIME RECRUITMENT LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ROBIN WHITE
(Of Counsel)
As instructed by:
Wadesons Solicitors
Riverbank House
1 Putney Bridge Approach
London
SW6 3JD	

For the Respondent	MR DAVID CHRISTIE
(Of Counsel)
As instructed by:
Messrs DFA Law Solicitors
6 Cheyne Walk
Northampton
NN1 5PT	

SUMMARY

Sex Discrimination - comparison 

Appellant was employed in an office in which sexual remarks relating to women were made.  She (and all others in the office) were sent by her manager an email showing female genitalia.  She alleged sex discrimination.  The ET held that since the remarks were made indiscriminately and the email sent to all staff, there was no discrimination.  Had the ET approached the facts on a correct basis?

HIS HONOUR JUDGE J R REID QC

Introduction
1.	 This is an appeal against a decision of an Employment Tribunal held at Liverpool. The decision was sent to the parties on 2 June 2005. The unanimous judgment of the Tribunal was that the claimant was not unlawfully discriminated against on the ground of her sex by her former employer, the Respondent. She had also asserted that the respondent had unfairly dismissed her and had breached her contract of employment but those claims did not proceed to a hearing.

The facts and Employment Tribunal findings
2.	The claimant worked for the respondent from 28 June to 18 August 2004. She terminated her employment, on the Tribunal’s findings, because her hours of work could not be changed to accommodate her. The Tribunal, which was critical of the claimant’s evidence and rejected much of it, made two findings upon which she now places reliance as founding a claim for sex discrimination. It found that during her employment inappropriate remarks were made by certain of the claimant’s male colleagues about women’s outfits and breasts and that these remarks were made indiscriminately in the presence of all the employees of the respondent working within the office. The Tribunal accepted the claimant’s evidence that she was upset by those comments.

3.	The Tribunal also found that on 11 August 2004 her manager circulated to all the employees of the company within the office a joke e-mail. Annexed to the e-mail was a picture showing the genitalia of two naked women.  For reasons which were specific to the claimant and which were wholly understandable, she was very upset by the e-mail.
4.	After she had left her employment, by a letter bearing the date 25 August (which does not appear to have been received by the respondent until some time later), the Claimant wrote to the respondent setting out the complaints she had concerning the behaviour of her colleagues. Before the Tribunal the claimant asserted that these instances of mistreatment were meted out to her because of her sex and therefore amounted to unlawful discrimination.

5.	The Tribunal noted that by section 1 of the Sex Discrimination Act 1975 a person discriminates unlawfully against a woman if on the ground of her sex he treats her less favourably than he treats or would treat a man, and that under section 6 it is unlawful for an employer to discriminate against a woman by dismissing her or subjecting her to any other
detriment. The Tribunal then referred to section 41 of the Act, by which in respect of the acts of an employee, it is a defence for an employer to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act or acts of that description.23.

6.	The Tribunal then dealt with the remarks in the office and said:
“34.  However, in order for her to establish unlawful discrimination, we
must be satisfied that on the ground of her sex, she was treated "less favourably"
than an actual or hypothetical man.
35.  	She fully accepted that the comments were indiscriminate, in the
sense that her colleagues would make them regardless of who was present. Their
attitude was not altered by the sex of those employees who would overhear them.
36.	It follows that Mrs X was treated exactly the same as her male
colleagues. Although the effect on her would have been different, the treatment was
precisely the same and therefore her claim of unlawful discrimination fails.”

7.	The decision dealt with the e-mail in these terms:
“37.	Finally, we turn to the e-rnail sent on 11 August. We accepted that
Mrs X was greatly upset by the e-mail because of her personal circumstances but in
any event it would have been at least embarrassing if not offensive to most female
recipients.
38.	Again, we must consider whether she was treated less favourably
on the ground of her sex.
39.	The e-mail was circulated to all members of the office whether male
or female. It follows that she was again treated precisely the same as the male
members of the office and not discriminated against on the ground of her sex. To
put the matter another way, there cannot be discrimination were the action of the
alleged discriminator is "indiscriminate".

8.	The Tribunal concluded that there was therefore no unlawful discrimination and the claim failed. 
The claimant’s submissions

9.	The Claimant submitted that this conclusion was wrong in law. The notice of appeal also asserted that the decision was perverse but it emerged that the allegation of perversity was no more than an assertion that the Tribunal got the law wrong and the ground was not argued further.

10.	The treatment that the claimant received was gender specific as the treatment was on the grounds of the female sex. The Claimant's male colleagues were not subject to inappropriate and discriminatory comments regarding their sex and did not receive an offensive e-mail displaying the genitalia of naked men. The Employment Tribunal accepted that the Claimant was greatly upset by the e-mail and that it would have been at least embarrassing if not offensive to most female recipients. The conduct of the manager and her male colleagues was not the same towards male and females as the comments and e-mail did not affect the dignity of the male members of staff at work. The treatment of the Claimant as a female was different from the treatment the male members of staff. The offensive comments may have been made in front of both male and females and the email may have been to both male and females but they were not based on the sex of both male and females.

11.	The Employment Tribunal failed adequately to address the cases of Moonsar v Five-ways Express Transport Ltd [2005] IRLR 9 and Driskel v Peninsula Business Services Ltd [2000] IRLR 151 (especially paragraph 12 at p155). In Moonsar a female employee who shared an office with men who downloaded pornographic images onto a screen or screens in the room where they were all working. Although the images were not circulated to Mrs Moonsar, she worked in close proximity and was aware of what was happening. She made no complaint about it because she valued her job. The EAT stated:

“Viewed objectively, this behaviour, namely that on three occasions male colleagues in the same room were downloading onto a computer pornographic material, clearly had the potential effect of causing an affront to a female employee working in the close environment and as such would be regarded as degrading or offensive to an employee as a woman. It was, in our view, clearly less favourable treatment and a detriment clearly followed from the nature of the behaviour, and there was evidence before the tribunal that this lady indeed found that behaviour unacceptable. The fact that she did not complain at the time does not, in our view, afford a defence where the behaviour was so obvious, as in this case.”

12.	The Employment Tribunal must have been influenced by the earlier case of Brumfitt -v-Ministry of Defence and another [2005] IRLR 4, which was cited to it but is not mentioned in the decision. That case concerned a female employee who attended an RAF training course. Throughout the course, her male supervisor used a substantial number of offensive and obscene remarks, but these remarks were not gender specific and were directed at both male and female personnel attending. The Tribunal decided that although the applicant found the language to which she had been exposed offensive and humiliating to her as a woman she had not been exposed to it because of her sex but because like others of both sexes she had been required to attend the training course. On appeal the Employment Appeal Tribunal agreed with this decision, holding that the behaviour had an obvious detrimental affect by undermining Mrs. Moonsar's dignity at work.

13.	If the Employment Tribunal had considered the issue of comparator it would then have to consider the affect that the use of pornography in the workplace would have had on such a comparator and would have concluded that the use of pornography in the presence of a woman was less favourable treatment than the use of pornography in the presence of a suitable hypothetical male comparator.
The Respondent’s submissions
14.	Counsel for the respondent submitted that the claimant muddled the difference between the form of sexual harassment (the essence of her complaint of being treated less favourably) and the alleged reason for the harassment as identified by Lord Nicholls in MacDonald v. Advocate General for Scotland; Pearce v Governing Body of Mayfield Secondary School [2003] IRLR 512 (HL) at paragraph 15 on p 515 and by Lord Hobhouse at paragraph 110 on p 527.

15.	Sexual harassment is a sub-category of direct sex discrimination and it applies only if the reason behind the objectionable conduct is connected to the victim's sex - see Brumfit v MoD [2005] IRLR 4. While the perception of the Claimant was relevant so particularly was the understanding, motive and intention of the alleged discriminator.  Particular reliance was placed on paragraph 17 of Lord Nicholls speech in the MacDonald case - "the suggestion in some cases that if the form of harassment is sexual or gender specific, such as verbal abuse in explicitly sexual terms, that of itself constitutes less favourable treatment on the grounds of sex, could not be reconciled with the language or scheme of the statute. The fact that harassment is gender specific in form cannot be regarded as of itself establishing conclusively that the reason for the harassment is gender-based on the ground of her sex.” 

16.	The claimant failed to consider the reason for the treatment to which she was subjected but considered only the effect on her of that treatment. It would have been unnecessary to bring into force Regulation 5 of the Employment Equality (Sex Discrimination) Regulations 2005 which added Section 4A to the Act as from 1 October 2005 if her submissions were correct. 

17.	The e-mail was an indiscriminate act circulated to men and women. While the Tribunal made no mention of it, some men of a prudish disposition would find pictures of female genitalia embarrassing and offensive.    The claimant was peculiarly sensitive to an act which was not aimed at her at all. The act was not discriminatory and the claimant did not show she was treated in the manner complained of because she was a woman. Similarly the comments about women were "inappropriate" and the Claimant was upset by them, but none of the comments were directed at her. The Tribunal was entitled to reach the conclusions which it did. 

18.	The Moonsar case could only be regarded on its own unusual facts and presentation. It did not sit well with Brumfit v MoD in which Macdonald was cited. In any event, the viewing of "real" pornography by men in the presence of a woman who in fact found it degrading and offensive thus causing affront as opposed to receiving an unusual view of naked women sent indiscriminately to men and women is clearly distinguishable.  Driskel added nothing to the Claimant’s case. Nothing in the parts of the claimant’s evidence which the Employment Tribunal accepted was obviously detrimental to her as a woman. Inappropriate and offensive language of a sexual nature does not constitute discrimination which satisfies the test for direct discrimination unless - a) the complainant has been treated less favourably than the comparator with which she falls to be compared and b) she has been so treated on the grounds of her sex. The Tribunal had been entitled to conclude she was not subjected to less favourable treatment with any possible comparator and that the treatment had nothing to do with her sex.

Conclusions
19.	We found Moonsar a difficult case. It was decided after argument on only one side (the Respondent having been debarred from appearing) and without the relevant House of Lords authority being referred to. The decision may be justified on its own particular facts and in any event has now been overtaken by the insertion of section 4A in the Act. 

20.	Driskel was of great assistance, particularly the passage at paragraph 12(d) of the judgment. The Tribunal had to make an objective assessment of all the facts, including the claimant’s subjective perception of the matters the subject of complaint, and the motive, understanding and intention of the alleged discriminator, and to bear in mind the sex both of the claimant and of the alleged discriminator.

21.	In our view the respondent is correct in submitting that the complainant had to satisfy the Tribunal that she was treated less favourably than the comparator with whom she was compared and that she had to show that she had been so treated on the grounds of her sex.  However so far as the first element is concerned (the question is “Who is the proper comparator?”) the Tribunal does not seem to have addressed that question at all. It merely found that all members of staff (both male and female) were treated in the same way by the distribution of the e-mail and the inappropriate sexual comments, and concluded that therefore there was no discrimination. 

22.	The Tribunal stopped at the point at which it held that the offending acts had been directed indiscriminately at the entire office staff (both male and female), but it did not follow from that fact that the conduct could not be discriminatory. It was the sex of the claimant (as in Driskel) and the sex specific nature of the offending matter which potentially added the material discriminatory element. In this respect the case differed from Brumfit in which the offensive and obscene abuse was indiscriminate rather than relating to one sex only. 

23.	The Tribunal did not, as in our view it should have done, ask itself whether a male member of staff would have been treated in the same way by comments of a sexual nature about men and by distribution of pictures of male genitalia. If it had done so, it might have found that men would not have been so treated and the conduct was discriminatory. On the other hand it might have found that men might equally have been subjected to (mutatis mutandis) identical treatment and that the claimant was not treated less favourably than any male in the office would have been. It might have held that (as in Brumfitt) the treatment was not on the grounds of her sex, but simply because she was in the office.

24.	In these circumstances we take the view that the case should go back to the same tribunal (if practicable) to consider the matter in the light of this decision and (if necessary) to go on and consider the “reasonable steps” defence raised by the respondent which the Tribunal did not find it necessary to deal with in the light of its earlier findings.