Coyne v The Home Office.

Sex Discrimination - Failure to investigate allegations of harassment

EAT uphold a tribunal's decision that employers discriminated against an employee when they failed to investigate adequately her allegations of sexual harassment by a colleague. The reason for the employers inadequate response was that they had proceeded on a stereotypical and biased attitude that the woman was herself to blame for the alleged harassment

C was employed by the Home Office at Holloway Prison. She complained to her employers that on two occasions a colleague had subjected her to sexual harassment. The employers had a clear policy on dealing with complaints of this kind, but it was not fully implemented in C's case. C became frustrated by the .way her employers were handling her complaint and she brought a tribunal claim of direct sex discrimination against them.

Employers investigation flawed

The tribunal found that the employers had failed to deal promptly with C's allegations and that their initial reaction was .to assume that it was C's own fault that the incidents had taken place. The tribunal also found that the findings of the employers investigation, which was finally completed after a delay of nearly two years, lacked independence and demonstrated a bias in favour of the perpetrators of the alleged harassment.

In the light of these findings, the tribunal held that the employers had discriminated against the complainant 'by reason of their failure properly to investigate her complaints of sexual harassment. In the tribunal's view there was no material difference between a failure to prevent harassment occurring and a failure to deal properly with a complaint of harassment, 'since the natural consequence of a failure to deal with a complaint will be a risk of continuation of the same conduct. The employers appealed to EAT against the tribunal's decision.

EAT distinguish Burton case

EAT stated that it was not entirely clear on what basis the tribunal had concluded that the employers were liable by reason of their failure to investigate properly the employee's complaints of sexual harassment. It occurred to EAT that the tribunal had been seeking to apply the decision of EAT in Burton anor v De Vere Hotels Ltd. In that case catering staff at a function were exposed to racially offensive remarks made by the comedian Bernard Manning. EAT upheld the employees claims of race discrimination, setting out in the process guidance as to the circumstances in which an employer may be liable for the discriminatory acts of a third party. EAT stated that an employer subjects an employee to the detriment of racial harassment if he causes or permits the racial harassment to occur in circumstances in which he can control whether it happens or not.

Returning to the instant case, EAT pointed out that there was an important distinction between its facts and the facts of the Burton case. The question in the instant case was not directed to the responsibility of the employers for the commission of an act which they could have prevented. The case was concerned with the responsibility of the employers for the consequences of acts which had already occurred. Accordingly, the Burton principle did not apply. If the tribunal in their decision were attempting to apply that principle, then they had fallen into error.

Employers adopted stereotypical attitude

EAT stated that the question the tribunal should have been asking themselves was `what was the detriment alleged against the [employers]?'. The answer was that it was their failure to carry out a proper investigation of the complaint of sexual harassment that had been made.

The next inquiry was whether that detriment had been caused by the gender of the complainant. There may be many reasons why an employer fails to carry out a proper investigation and, in each case, the question at issue will be whether the tribunal can infer that the sex of the complainant was the reason for the failure to investigate.

Although the tribunal had failed directly to ask themselves that question, it was clear from their decision that they had concluded that the employers had a biased attitude towards the complainant. EAT stated that they were all too familiar with the stereotypical assumption that a woman has, in some way, asked for or been responsible for the mistreatment to which she has been subjected by a male colleague.

Tribunal reached correct decision

Taking the decision as a whole, therefore, it was clear that the tribunal had upheld the complaint of unlawful sex discrimination on the basis that the employers had failed to put into practice their policy on investigating allegations of sexual harassment because of their stereotypical view about women. By failing to carry out .a proper investigation the employers had subjected the employee to a detriment in that they had failed to give her the support that was required under their procedure and to take steps to ensure that she could be confident that her working environment would not expose her in future to a risk of similar conduct.

EAT concluded that, although the tribunal could have expressed their reasoning more clearly, there was a sound basis for their conclusion that the employers had discriminated against the employee on the ground of her sex. The appeal was accordingly dismissed.