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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hamilton v. Beardmore [2002] UKEAT 0586_01_0205 (2 May 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/0586_01_0205.html Cite as: [2002] UKEAT 586_1_205, [2002] UKEAT 0586_01_0205

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APPEARANCES

 

For the Appellant	MR W E HAMILTON (In Person)


 


HER HONOUR JUDGE A WAKEFIELD

1. This is an appeal by Mr William Hamilton against the finding by an Employment Tribunal sitting at London South that he had, by his actions on Sunday 10 September 2000, unlawfully discriminated against the Respondent, Ms Beardmore in, terms of the Sex Discrimination Act 1975 Section 4. The Respondent does not appear before us today for this appeal and simply relies on the correctness of the decision of the Employment Tribunal.
2. The brief background facts are that the Respondent had made a complaint about the Appellant to their mutual employer, South West Trains. The essence of the complaint was of sexual harassment. The Grievance Procedure was invoked and the Appellant was suspended from work. At a hearing by South West Trains on 9 September 2000 the grievance was found to have been justified and a penalty was imposed on the Appellant. On the following day the Appellant posted a notice at Staines Station, where both he and the Respondent were based. It was in the following terms:

"THANKS

I would like to express my sincere thanks to everyone who supported me throughout the past few months.

It was a trying time for me but my hopes were kept up knowing that I had the support of the vast majority of the staff. Your telephone calls and personal messages of support were much appreciated.

BILLY HAMILTON"

3. Also on that day the Appellant and the Respondent encountered each other, in circumstances which were in dispute for the Employment Tribunal, at Richmond Station where the Respondent was on duty and the Appellant was not. As to these events the Employment Tribunal found as follows:

"18. Her full case was as set out in her witness statement and her evidence before us but in a nutshell it was that the second Respondent "rubbed her nose in it" by travelling to the station at Staines where all the people with whom we were concerned were based on the Sunday after the disciplinary hearing against him concluded on Friday. He went into the mess room there and placed a notice on the board, a copy of which we had in the bundle at page 106. He then travelled to Richmond station and attempted to speak to the Applicant who was on duty at Richmond station that afternoon."

They then dealt with the words in the notice and continued:

"20. The second Respondent in his evidence before us explained his movements and behaviour on that Sunday afternoon. He had not in fact put anything about that afternoon in his written witness statement. He told us that he had been away from work and was suffering from depression and had been living on his own and found the whole business very difficult to bear. He also told us that he did not accept that Mr Fairbank's verdict was fair and that he was depressed at the outcome and continued to assert that he has been wronged.

21. It is very difficult for us as a Tribunal to carry out a deep psychological analysis of parties before us. We have no doubt at all that the Applicant genuinely took offence and was hurt by the notice, the fact that the notice was put up scarcely one working day after the conclusion of the grievance proceedings coupled with the Second Respondent insisting on approaching her and asking her whether she wished to speak to him.

22. Although as the second Respondent asserted the note clearly expresses its thanks to friends and colleagues for their support there is we find a very clear implication to put the matter in very simple language that a large number of staff were "on his side" in the last few months when it was plainly common knowledge that the Applicant had been pursuing a grievance about his behaviour towards her. We accept in the second Respondent's favour that the business in a general way must have been very upsetting for him and he may not have been thinking very wisely or sensibly.

23. Equally, on the other hand we have no doubt at all that his behaviour in putting up a notice and seeking to speak to the Applicant was directly linked and substantially caused by the whole process instigated by the Applicant's grievance which was plainly a protected act within the meaning of the Sex Discrimination Act. It is obvious that the whole purpose of the victimisation protection within all our discrimination legislation is to protect complainants from pressure and in this case repercussions from their instigation of proceedings. Indeed, in this case the Applicant had in effect been vindicated. And although the second Respondent did not accept that she had been entitled to be vindicated on the other hand he was not we find entitled to expose her to the risk of being unpopular with "the majority of the staff" as we find was the clear implication of that note."

They then go on to deal with the matter somewhat further in the next 2 paragraphs.

4. These conclusions are criticised before us in this appeal essentially on three bases. Firstly it is argued that the Employment Tribunal were wrong to find any negative connotation regarding the Respondent in the Notice posted by the Appellant and therefore were wrong to find that she was thereby treated less favourably than the Appellant treated or would treat another person. Secondly the Appellant says that the Employment Tribunal wrongly failed to take account of the explanation given in his evidence as to his presence at Richmond Station on 10 September which he had said was unconnected with any knowledge of the Respondent's presence there that day or any desire to speak to her.

He had said, in effect, that having seen her unexpectedly there he merely gave her an ordinary greeting between colleagues which she to some extent repulsed. Thirdly it is argued that in the light of the judgments of the House of Lords in the case of Chief Constable of West Yorkshire v Khan [2001] ICR 1065, the Employment Tribunal were wrong to find that any behaviour of his that day was by reason that Ms Beardmore had done the protected act. In other words that there was no causative link proved between the behaviour and the protected act such as section 4(1) requires.

5. In the Khan case the Chief Constable had refused to provide Mr Khan with a reference in support of his application for a job with another police force, there being pending proceedings by Mr Khan against the West Yorkshire Force before an Employment Tribunal as regards a complaint of unlawful discrimination.

In finding in favour of the Chief Constable, Lord McKie said at paragraph 44 of the speeches:

"The advice of the solicitor advising the Chief Officer was laid fully before the industrial tribunal and no challenge was made of it. It was to the effect that because there was pending litigation raising issues which were relevant to the reference it would be inappropriate for the chief officer to give a reference. In my opinion in these circumstances the chief officer having acted in accordance with that perfectly understandable advice did not treat Sergeant Khan less favourably that he would have done others applying for a reference by reason that Sergeant Khan had brought proceedings under the Act."

Lord Hoffman at paragraphs 49 and 57 said this:

"The purpose of this statute is that a person should not be victimised because he has done the protected act. It seems to me no answer to say that he would equally have been victimised if he had done some other act and that doing such an act should therefore be attributed to the hypothetical "other persons" with whom the person victimised is being compared. Otherwise the employer could escape liability by showing that his regular practice was to victimise anyone who did a class of act which included but was not confined to protected act.

The requirement that doing the protected act must have been the reason for the less favourable treatment is adequate to safeguard an employer who acted for a different and legitimate reason. On the other hand it will rightly provide no defence for an employer who can only say that although his reason was indeed the doing of the protected act, it formed part of a larger class of acts to which he would have responded in the same way."

6. As to the three grounds of appeal, which in the event can be dealt with together, had the posting of the notice by the Appellant at Staines Station stood alone we might have been persuaded that the Employment Tribunal were wrong to find that a discriminatory act had been committed by the Appellant. But as the Employment Tribunal said in paragraph 33 of the decision already referred to, it was the whole course of conduct on 10 September which fell to be considered. Given their findings as to what occurred at Richmond Station (which is a matter for them having heard the evidence of both parties) they were satisfied that the conduct was directly linked to and substantially caused by the whole process instigated by the Respondent's grievance. It is not the function of this Appeal Tribunal to interfere with findings of fact or conclusions as to the credibility of one witness as against another, unless such findings can be said to be perverse. No such suggestion could be sustained in this case.
7. As to the principles set out in Khan, albeit that the case was decided after this Employment Appeal decision, it is clear to us that the Employment Tribunal properly directed its mind to causation and found the necessary causative link to have been proved. The inferences of unlawful discrimination made by the Employment Tribunal were ones which they were, on the facts that they had found, perfectly entitled to draw. Mr Hamilton has made his points to us clearly and succinctly but we are unable to agree with them. The appeal is therefore dismissed.