United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR SEBASTIAN REID (Of Counsel) Messrs Brachers Somerfield House 59 London Road Maidstone Kent ME16 8JH


 


JUDGE PETER CLARK

1. This is an appeal by the first Respondent before an Employment Tribunal sitting at Ashford under the chairmanship of Mr David De Saxe, Arun Estate Agencies Ltd, against that Tribunal's assessment of compensation at a remedies hearing held on 30^th April to 1^st May 2001, following their finding, after a liability hearing, that the first Respondent had discriminated against the Applicant, Ms Sheridan, on grounds of her sex. The liability decision was promulgated with Extended Reasons on 16^th August 2000, the remedies decision on 24^th May 2001.
2. By her Originating Application presented on 8^th March 1999 the Applicant complained of constructive unfair dismissal, sex discrimination and disability discrimination. In the event the Tribunal found

a) that she had not been constructively dismissal or discriminated against on grounds of disability but

b) that her claim of sex discrimination succeeded on one ground only. That was an allegation of sexual harassment by her manager, the second Respondent, Bob Allen, over a period of just under one year terminating on 7^th November 1993, after which Mr Allen was eventually forced, by the first Respondent, to resign on 22^nd December 1993 as a result of his behaviour, not only towards the Applicant, but also towards another female employee.

3. It was a bad case of harassment. The Tribunal made the following findings of fact at paragraph 24 of the liability decision reasons

1) In 1992 Mr Allen became angry with her when she asked for time of work to attend hospital for a mammogram. He accused her of lacking in commitmen

2) The Applicant became upset and cried, and when she explained to Mr Allen the need foe a mammogram. He tried to comfort her and thereafter showed her special attention.

3) In about 1993, Mr Allen started to pay the Applicant unwanted and cumulative sexual attentions. He used to come to see her, when there was no paritculr business point to the visit. After her move to Chatham in April 1993, he began to pay her compliments on her clothes and appearance. He would telephone from his home, without business related reasons.

4) Also during 1993, Mr Allen began to attempt to show the Applicant pornographic magazines at work during what were known as "one to one" sessions, which as a manger, he used to have with members of his staff. He would conceal the magazine inside a folder of the type used to contain the sort of commercial information which it was the purpose of one to one visits to discuss

5) On several occasions during 1993 Mr Allen rang her from home. When, he told, that he was watching a pornographic video and he gave her to understand that he was masturbating.

6) In September 1993 Mr Allen came to her home and told her that he wanted to have sex with her

7) In one to one meetings during October and the beginning of November Mr Allen exposed himself to Ms Sheridan and tried to show her pornographic magazines, and asked her to undo her blouse

8) On the last occasion of indecent exposure, Mr Allen masturbated to ejaculation in her presence

4. The Tribunal, in assessing compensation, identified three factors in connection with the sexual discrimination found at paragraph 20 of the remedies reasons

i) The campaign of harassment itself lasting for nearly one yeas by a manager towards his female subordinate. The last incident occurred in an empty office building when the Applicant was "paralysed with fear"

ii) When she reported Mr Allen's behaviour to Mr Lench, the Managing Director of the subsidiary of the first Respondent, he avoided his responsibilities by persuading her to write a letter to Mr Allen on 7^th November 1993

iii) The first Respondent permitted Mr Allen to resign instead of dismissing him giving the impression that he left in good standing whilst offering little, if any, support to the Applicant

5. In 1998 the Applicant suffered a mental breakdown and there was a medical dispute as to whether that breakdown was attributable to events at work. The Tribunal preferred the evidence of the psychiatrist, Dr Seifert, called on behalf of the Respondent to that of Dr Cooney, called on behalf of the Applicant. They were not satisfied that the Applicant suffered psychiatric injury as a result of Mr Allen's behaviour towards her. It did not cause her to resign in February 1999.
6. Against that background the Tribunal assessed compensation under the following heads

1) Injury to feelings - £12,000

2) Aggravated damages - £4000

3) Statutory interest at the rate of 8% per annum on the award for injury to feelings from the 1^st May 1993, the mid-point in the campaign of harassment perpetrated by Mr Allen, and in relation to aggravated damages, 8% from the 1^st May 1997, being the mid-point between the date of the discrimination complained of and the date of calculation, the former being taken as 1^st May 1993 for this purpose.

7. Finally the Tribunal declined to order costs in favour of the Respondent, notwithstanding an offer of settlement made by the Respondent on 1^st June 2000 in the sum of £50,000. That offer came after an initial hearing on limitation, but before the substantive liability hearing which took place between 5^th and 14^th June 2000.
8. In this appeal Mr Reid takes four points.

1) Injury to feelings

The Tribunal was referred to my judgment in ICTS(UK) Ltd v Tchoula [2000] IRLR

643 in which we identified, from a selection of earlier awards, two broad categories of

awards for unlawful discrimination – higher and lower. That exercise was designed to be helpful to Tribunals without laying down in stone how an award should be calculated in every case, each case, of course, depending on its own facts.

9. At paragraph 13, page 648, first column, we reminded ourselves of the dictum of Lawton LJ in Sky Rail v Coleman [1981] IRLR 398, paragraph 14, that an appellate court may only interfere with the Tribunal's assessment of compensation if the Tribunal has

"acted on a wrong principle of law having misapprehended the facts or . . made a wholly erroneous estimate of the damage suffered".

10. An example of that principle applied in practice may be found in Tyianiyu v London Borough of Hackney, unreported, referred to in Tchoula at paragraph 13. There an Employment Tribunal found that the Applicant had been treated differently from his colleagues, as he was the only person to be dismissed in a reorganisation. They found that this was due to his race and an act of victimisation, he having made earlier complaints of racial discrimination. The Tribunal awarded him £13,500 for injury to feelings. The Employment Appeal Tribunal reduced that award to £7,500. The Court of Appeal restored the Tribunal's award holding that, although it was generous, the Employment Appeal Tribunal, not having heard the witnesses, ought not to have interfered with it.
11. In the present case Mr Reid submits that having concluded (remedies reasons paragraph 21) that this discrimination, in the light of their findings on the medical evidence, fell at the top of the lower category of cases summarised in Tchoula, the Tribunal's overall award of £16,000, by way of compensation, is manifestly excessive. He has pointed to awards for personal injury, particularly awards for post-traumatic distress disorder in sexual assault cases, and awards for wrongful arrest and false imprisonment by way of a yardstick.

2) Aggravated damages

12. Mr Reid submits this was not a case for a separate award by way of aggravated damages because Mr Allen immediately desisted from his misconduct after receiving the Applicant's letter of 7^th November 1993.
13. Pausing there we reject both submissions for the following reasons.

a) This was a prolonged campaign of harassment, of a particularly offensive nature, by a manager abusing his position, for whose acts the employer was held to be vicariously liable. It was compounded by the way in which the matter was dealt with by senior management once the Applicant had made her complaint.

b) The manner in which Mr Allen conducted his campaign was highly insulting and oppressive towards the Applicant. The case falls within the category which is capable of attracting an award of aggravated damages. See Alexander v Home Office [1988] ICR 685. It does not, in our judgment, cease to do so because Mr Allen desisted after the Applicant's letter of 7^th November

c) In our judgment, neither the award for injury to feelings, nor that for aggravated damages, nor the combined award viewed as a whole, can be said to be a wholly erroneous estimate entitling this Appeal Tribunal to interfere.

3) Interest

14. Mr Reid argued below that the Tribunal ought to exercise its discretion granted by Regulation 6(3) of the Employment Tribunal (Interest On Awards In Discrimination Cases) Regulations 1996, to reduce the period over which interest was awarded since the delay in bringing the case was not attributable to the Respondent. It was submitted on behalf of the Applicant that the usual rule ought to apply.
15. The Tribunal preferred the latter submission influenced, we see, by the observations of Keene J in Derby Specialists v Burton [2001] IRLR 69, paragraph 39, set out at paragraph 23 of this Tribunal's liability decision reasons. Mr Reid repeats that argument today, however, the question for us is whether it can be said the Tribunal arguably erred in law in the exercise of their discretion and reached a perverse conclusion.
16. We are unable to answer that question in the affirmative. In our view the Tribunal reached a permissible conclusion on the assessment of interest.

4) Costs

17. The argument here can only be that the Tribunal's refusal to award costs to the Respondent was perverse on the basis that the Applicant refused an offer made on 1^st June, and withdrawn on 5^th June 1999, of £50,000, and in the event recovered just under £30,000 in all, to include interest.
18. We reject that submission. During that five day window the case had not yet begun on liability and the question of remedy was problematical in view of the conflicting medical evidence. In our judgment the Tribunal was entitled to take the view that the Applicant's refusal of that offer, open for so short a time, whilst it may have been fatal in the civil courts, did not constitute unreasonable conduct for the purposes of the different costs regime laid down in the Employment Tribunal Rules.
19. Overall we have considered the Tribunal's very detailed reasons in this case, both in relation to liability and to quantum. We think that they stand up to close scrutiny and in these circumstances, there being no arguable point of law to go forward to a full appeal hearing in our judgment, we shall dismiss the appeal at this stage.