Coyne v Home Office

Under the Sex Discrimination Act 1975, an employer’s failure to investigate or handle a sexual-harassment complaint may cause detriment. It is not unlawful sex discrimination unless the handling itself was less favourable because of sex, compared with a man in the same or materially similar circumstances. Delay, poor investigation, victim-blaming or biased adjudication do not by themselves establish that causal link. The tribunal must identify evidence supporting an inference that the complainant’s sex caused or materially contributed to the treatment. An attitude held by a non-employee cannot be imputed to the employer or another manager without an evidential or agency basis. By a majority, the Court of Appeal held that the essential gender-based finding had not been made.

Ms Coyne, an instructional officer employed by the Home Office, complained of sex discrimination after sexual harassment by a local authority secondee and the Home Office’s subsequent handling of her complaint. The Industrial Tribunal rejected racial victimisation but upheld sex discrimination on the limited basis that delay, victim-blaming and biased handling of the complaint formed part of the harassment-related detriment. The Employment Appeal Tribunal dismissed the Home Office’s cross-appeal in April 1999, accepting that the Industrial Tribunal had found a gender-based reason. The Home Office appealed. The central issue was whether the handling of the complaint itself had been less favourable treatment on grounds of sex, rather than merely poor or delayed administration.

1. Disposition. By a majority, Morritt LJ and Sir Christopher Slade allowed the Home Office’s appeal and dismissed Ms Coyne’s complaint. Sedley LJ dissented and would have dismissed the appeal.
2. Statutory test. Sections 1(1)(a), 5(3) and 6(2)(b) of the Sex Discrimination Act 1975 require the detriment arising from complaint-handling to be less favourable treatment of a woman than of a man in the same or materially similar circumstances, and to be on grounds of sex. The fact that the complaint concerned sexual harassment, or that it was handled improperly, did not itself satisfy that requirement.
3. Evidence and inference. The two-year delay and the failure to conduct an independent investigation were insufficient, without more, to establish a gender-related reason. The Industrial Tribunal had not found that Mr Julian’s victim-blaming reflected a gender stereotype. A specialist tribunal should state such a finding clearly, and the appellate court could not supply the missing essential link. The reasoning in British Telecommunications plc v Williams [1997] IRLR 668 was applied. The majority treated Burton v De Vere Hotels [1997] ICR 1 as not governing consequences of harassment that had already occurred, rather than an employer’s responsibility for preventing harassment or exposure to its risk.
4. Attribution. Mr Brown’s attitude could not be imputed to Mr Julian or the Home Office merely because Mr Brown was Ms Coyne’s de facto line manager. Mr Brown was not an agent or employee of the Home Office, and the evidence did not establish that Mr Julian shared a gender-based attitude.
5. Dissent. Sedley LJ considered that the case required a rounded evaluation of the primary facts, applying the approach in King v Britain-China Centre [1992] ICR 517. He regarded the question as whether the harassment materially contributed to the prolonged neglect of the complaint. On that approach, the finding of sex discrimination was tenable.

The formal order was: appeal allowed; complaint dismissed; the appellant to pay the respondent’s costs, subject to the stated enforcement and legal-aid taxation directions.

1. Court of Appeal: Allowed the Home Office’s appeal from the Employment Appeal Tribunal and dismissed the complaint.
2. Employment Appeal Tribunal: In April 1999 dismissed the Home Office’s cross-appeal against the Industrial Tribunal’s finding of sex discrimination.
3. Industrial Tribunal: Rejected the racial-victimisation complaint but upheld the sex-discrimination complaint on the limited basis of the treatment of the sexual-harassment complaint.