Goodwin v Cable Tel UK Limited IRLR 665 1997
The Employment Appeal Tribunal has allowed an appeal against an Industrial Tribunal decision that a dismissal arising out of the way health and safety duties were carried out was not covered by Section 57A of the Employment Protection Consolidation Act (now Section 100 Employment Rights Act 1996). Mr Goodwin was employed as a construction manager and his duties covered making sure that sub-contractors complied with health and safety legislation. He wanted to adopt a stringent approach which his employers did not support, although the genuine nature of his concerns was not questioned.
A confrontation ensued when Mr Goodwin and his employers disagreed about his approach and he was consequently removed from direct dealings with sub-contractors. His job was also changed to that of assistant construction manager, requiring him to report to a manager he had previously been on equal footing with.
Mr Goodwin felt that as a result of the employer's lack of support for him in carrying out his health and safety duties, he was unable to continue in employment so he resigned claiming constructive dismissal. Mr Goodwin claimed his dismissal was automatically unfair by virtue of Section 57A EPCA as follows:
"(1) An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or if more than one, the principle reason) for the decision is that -
(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work the employee carried out or proposed to carry out any such activities".
The Industrial Tribunal decided that this Section only applied where the dismissal was because the designated employee carried out health and safety duties, it did not apply to the way in which they were carried out. For this reason Mr Goodwin's dismissal was found to be fair.
He appealed. The EAT found that the tribunal was wrong when it decided that the dismissal was not protected by legislation, since it related to the way Mr Goodwin had carried out his duties, rather than the fact that he actually did them.
A similar approach to that taken in trade union related dismissal cases was appropriate. The protection must not to be diluted too easily.
However the point was made that not every act would be protected and it was right to consider whether the acts were relevant or pursued out of malice. The tribunal should have considered whether the way in which the employee approached his concerns about the safety record of a sub-contractor took him outside the scope of health and safety activities. Because they had not done this, the case was remitted back to an Industrial Tribunal to reconsider.
EAT defines what amounts to sexual harassment
BT v Williams [1997] IRLR 669
Claiming that a person of the other sex would have been treated in the same way is no defence to a sex harassment complaint the Employment Appeal Tribunal has held. And as sexual harassment is gender specific there is no need for a male comparator in order to find that sexual harassment is sex discrimination the EAT emphasised.
Florence Williams was a Clerical Officer working for BT. Her annual performance review (APR) was prepared by Paul Moore, the Customer Services Manager. He graded her unsatisfactory, which was very unusual and invariably led to dismissal procedures being invoked.
Following the appraisal Mr Moore held a counselling meeting with Miss Williams to discuss the appraisal. Miss Williams alleged that Mr Moore was sexually aroused in the interview, he stared at her legs and effectively trapped her in the room. She brought a complaint of sex discrimination alleging that Mr Moore's conduct amounted to harassment.
The Industrial Tribunal accepted Mr Moore's evidence that he was not sexually aroused but upheld Miss Williams' complaint of sex discrimination on the grounds that the atmosphere at the interview was sexually intimidating. Only one copy of the appraisal was taken into the room, the interview lasted between one and two hours.
No female manager sat in on the interview. The Tribunal questioned "the wisdom of Mr Moore in not having a female manager with him" which the Tribunal found would have been "a reasonable precaution" given that the situation was "obviously stressful".
The EAT defined sexual harassment as "unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work". They went on to say that "because the conduct which constitutes sexual harassment is itself gender specific, there is no necessity to look for a male comparator".
But the EAT did uphold BT's appeal against the tribunal's finding of sex discrimination.
In this case the Industrial Tribunal rejected the basis on which the allegation of sexual harassment was made as they accepted the manager's evidence that he was not sexually aroused. They therefore could only reach the conclusion that the complaint of unlawful sex discrimination was not proved, the EAT held.
The EAT did not like the conclusion that the interview was sexually intimidating because there was no other woman present and the interview took place in a confined space. They rejected the idea that employers should have female supervisors for female staff or to see that male managers are chaperoned when dealing with female staff.
It will be a matter of great regret if in the future Industrial Tribunals only accept evidence of overt sexual behaviour as sex discrimination. Oppressive behaviour based on sexual inequalities in the workplace and society must surely amount to sex discrimination under the EAT's own definition and the European Commission Code.