Women and Justice: Court: Employment Appeal Tribunal

Domestic Case Law

Wijesundera v. Heathrow 3PL Logistics Ltd [2014] I.C.R. 523 Employment Appeal Tribunal (2014)

Gender discrimination

The claimant, a Sri Lankan national, was working in England with a valid work permit when she was made redundant. The claimant claimed that she had been subjected to sex discrimination and harassment on numerous occasions. She also claimed that her dismissal was a further act of sex discrimination. In this case it was held that a worker knowingly employed under an illegal employment contract could bring a sex discrimination claim as the claim was not so inextricably bound up with her employment as to be defeated by a defence of illegality.

Reed & Bull Information Systems v. Stedman (1999, IRLR 299 EAT) Employment Appeal Tribunal (1999)

Employment discrimination

S was employed by Bull as a temporary secretary and was subsequently given a permanent placement responsible to the Marketing Manager, R. S resigned on the ground that she found working with him intolerable as R allegedly sexually harassed her. S never confronted S nor made any identifiable protests about his behavior with the exception of complaint she made about him telling dirty jokes to colleagues in her presence. But she had made complaints to her mother and colleagues at work. Although the tribunal decided that no single incident was serious enough to be capable of constituting sexual harassment, they did find that there had been a series of sexual inferences with a pervading sexual innuendo and sexist stance and that R realized that they were unwanted and were bullying in nature. With regard to the liability of Bull, the tribunal found that colleagues in the personnel department were well aware of the applicant's deteriorating health and that she had made complaints to other members of staff which had been dismissed. In those circumstances there should have been an investigation into the cause of the illness and the complaints that had been made. By failing to implement this, Bull committed a repudiatory breach of contract as they failed to deal with the issue of sexual harassment adequately. The tribunal concluded that the applicant was entitled to compensation for unfair dismissal by reason of sexual discrimination. The Employment Appeal Tribunal dismissed the appeal and added that whilst not “gross: the behavior of R towards S was most inappropriate in the workplace. The EAT placed the burden on the victim to place the harasser on notice that she does not welcome his conduct and endorsed the reasonable person perspective in assessing a victim’s rejection. The question at issue should be was the victim subjected to a detriment on the grounds of her sex. A one-off ace may suffice. The Court also directed tribunals to pay attention to the impact of totality of successive incidents, individually trivial.

Vent-Axia v. Wright (1999, EAT) Employment Appeal Tribunal (1999)

Sexual harassment

A department head accused of harassing four women was not permitted to learn the names of his accusers due to confidentiality issues. The EAT re-affirmed that the primary test when ordering disclosure of documents is whether disclosure is necessary for fairly disposing of the proceedings, not whether the document is confidential in nature. The Court ruled the alleged harasser must demonstrate that this information is necessary in the context of his specific case.

International Case Law

Driskell v. Peninsula Business Services & Others Employment Appeal Tribunal (2000)

Employment discrimination

D described, amongst others, how her manager suggested the day before her appraisal interview that, at that discussion, she should wear a short skirt and a low-cut or see-through blouse – the inference being that doing so would further her chances of a favorable appraisal. The EAT held that the “lewd words” acted as a detriment. The Court concluded that the correct approach when dealing with a course of conduct of harassment should be to limit judgment to the finding of all facts that are prima facie relevant. The judgment said that the facts of a case in which harassment is alleged “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”. The Court confirmed that the ultimate judgment of whether there was sexual discrimination reflects an objective assessment by the tribunal of all the facts, however important the applicant’s subjective perception.

Bracebridge Engineering Ltd. v. Darby Employment Appeal Tribunal (1990)

Sexual harassment

Sexual harassment. Two of Mrs. Darby’s male supervisors, Mr. Daly and Mr. Smith, grabbed and sexually assaulted Mrs. Darby in the works manager’s office at Bracebridge. Mr. Smith threatened Mrs. Darby with a written warning when she attempted to get away from him, but she was eventually able to run away from the men. Mrs. Darby reported the incident, but the general manager did not take action against the men and Mrs. Darby subsequently resigned. An Industrial Tribunal upheld Mrs. Darby’s complaints of sex discrimination and unfair dismissal, awarding £3,900 to Mrs. Darby. Bracebridge appealed to the Employment Appeal Tribunal, and the Employment Appeal Tribunal dismissed Bracebridge’s appeal. The EAT found no error in the Industrial Tribunal’s finding of sex discrimination by Bracebridge, noting that the single incident of sexual harassment was sufficiently detrimental to Mrs. Darby and therefore no pattern of harassment was necessary to reach this finding. The EAT also noted that the incident took place in the workplace and was perpetrated by Mrs. Darby’s supervisors, further supporting a finding of sex discrimination under s.6(2)(b) of the Sex Discrimination Act. The EAT also found no error in the Industrial Tribunal’s finding of constructive dismissal (unfair dismissal) by Bracebridge, because the company failed to respond appropriately when Mrs. Darby reported the incident and Mrs. Darby left her position at the company as a result of Bracebridge’s failure to act.