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Snowball v Gardner Merchant: EAT 1987

This was a landmark case in employment law and still governs that a Tribunal can hear any evidence which it feels relevant to the case.

In Snowball v. Gardner Merchant, the tribunal considered it relevant to the claim of sexual harassment in the workplace to hear evidence that the complainant sometimes spoke about her sexual relationships at work and had been known to refer to her bed as a playpen’. The Company was represented by Stephen Levinson and the applicant by Denise Kingsmill.

The employee had been dismissed but claimed that she had been sexually harassed by her manager. In the course of her evidence the employers sought to cross-examine her as to her general attitude towards sexual matters, based on events which had occurred during the course of her employment. She denied the allegations put to her. The employers then sought to call evidence to establish the truth of those allegations; the employee objected. The Tribunal decided in the employer’s’ favour. The employee appealed to the Employment Appeal Tribunal. The employee appealed to the Employment Tribunal as in Criminal Law a woman’s sexual history is not admissible.

Employment Appeal Tribunal 1986 Jan. 27, 28; March 13 Sir Ralph Kilner Brown, Mr. A. C. Blyghton and Mr. J. A. Powell

Appeal against refusal to exclude evidence given by applicant under cross- examination on her complaint of sexual discrimination and harassment. Cross- examination had been directed to showing that her attitude to sexual matters was such that it was unlikely that she would have been affected by the alleged harassment. HELD: Under Industrial Tribunal (Rules of Procedure) Regs 1985,Sch 1 r.8, IT was not bound by strict rules of evidence. The evidence was relevant & applicant had failed to show that it was of a kind which no reasonable industrial tribunal would have admitted. Appeal dismissed.

The tribunal’s decision was upheld. The evidence ought to be called, save insofar as it went only to establish an atmosphere of prejudice, was relevant both to the issue of credibility and to the issue of the extent of the alleged detriment and injury to feelings sustained by the employee.

This was not a case of attacking a genuine complainant as the Company was a major employer of female staff. Nor was it challenging her protection from discrimination. But the Company knew the real reason for dismissal but had to deal with the sexual discrimination claim. John Stacey, Group Human Resources Director for Gardner Merchant interviewed the accused Deputy Director and believed his account. He decided to fight the case even though there was danger of publicity because Gardner Merchant was proud of its reputation as an equal opportunities employer.

After sensational publicity on day 1 of the Tribunal, Mrs Snowball’s staff asked to appear on behalf of the Company as they knew she was portraying herself as a wallflower when in fact she wasn’t. The male chef wanted to show the lewd gifts she brought in to work for him and the suggestive magazines which she brought in regularly to display. The Company was not aware of this until then. (she claimed these had been given to her by her Deputy Director but her staff stated that they were her own). Whilst Mrs Snowball was shown to advertise her sexual exploits at work, this was not the mainstay of the case. The presence of those staff in the Tribunal room shocked her representative and led to the Tribunal agreeing to hear their evidence. Hence the appeal which was turned down.

The evidence was heard but the reason for Mrs Snowball’s dismissal was that she had defrauded the Company. She had been having an affair with the high profile client who ended the relationship. She then started to get revenge by fiddling the bread deliveries and removing large amounts of cash. This was uncovered by a Deputy Regional Director when her District Manager was on holiday. The District Manager had not challenged her because he knew of the relationship she had with the client. When the Deputy Director advised the client of his findings, he discovered that the affair had ended and there was no ‘protection’ for Mrs Snowball. After an investigation she was dismissed for theft. She then claimed that the Deputy Director had sexually harassed her and that was the case the Company had to deal with. It was several hearings before the actual reason for dismissal was heard. The evidence showed that Mrs Snowball had invented the sexual harassment claims to divert attention away from her fraud and many of the examples fell away on factual evidence about the type of car used for sex, the dates of the alleged offences, the magazines she said the Director had sent her, the underwear allegedly given to her and so on. The Tribunal accepted that the reason for dismissal was theft, accepted the evidence presented by the Company as opposed to Mrs Snowball and that all procedures had been followed by the employer.

[1987] ICR 719, [1987] IRLR 397

Hearings 13 Mar 1986 [1987] ICR 719, EAT Cases Cited Cases cited in: Snowball v Gardner Merchant Ltd [1987] ICR 719, EAT Attorney-General v. Hitchcock (1847) 1 Exch. 91 Chattopadhay v Headmaster of Holloway School [1982] ICR 132, EAT Coral Squash Clubs Ltd v Matthews [1979] ICR 607, EAT De Souza v Automobile Association [1986] ICR 514, CA H West & Son Ltd v Shephard [1964] AC 326; [1963] 2 WLR 1359; [1963] 2 All ER 625, HL(E) Harris v. Tippett (1811) 2 Camp. 637 Ministry of Defence v Jeremiah [1980] QB 87; [1979] 3 WLR 857; [1980] ICR 13; [1979] 3 All ER 833, CA Porcelli v Strathclyde Regional Council [1985] ICR 177, EAT Priest v. Rotary (1986) 634 F. Supp. 571 R v Anthony [1965] 2 QB 189; [1965] 2 WLR 748; [1965] 1 All ER 506, CCA Rosedale Mouldings Ltd v Sibley [1980] ICR 816; [1980] IRLR 387, EAT

https://www.iclr.co.uk/document/1981005464/casereport_69751/html https://oldsquare.co.uk/snowball-v-gardner-merchant-ltd/ https://swarb.co.uk/snowball-v-gardner-merchant-eat-1987/ https://www.lawteacher.net/free-law-essays/criminal-law/sex-discrimination-act-workplace.php