United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Dr Stephen Marriott, Representative Employment Law Adviser 37 Broompark Drive Dennistoun GLASGOW G31 2JB
For the Respondent	Mr A Korn, Counsel Instructed by- Messrs Irwin Mitchell Solicitors Imperial House 31 Temple Street BIRMINGHAM B2 5DB

SUMMARY
SEX DISCRIMINATION

Sex discrimination - compensation


 


LORD JOHNSTON:

1. The background to this matter is that the appellant employee was made redundant by the respondents, consequent upon an application by her for voluntary redundancy which was accepted. However, the background to the matter again, was that she felt unable to continue in her employment because of the failure on the part of the employer to respond to her request to allow her to go on to part time working because of her family responsibilities. The Employment Tribunal have held that in that respect she was discriminated against within the meaning of section 1(1)(b) of the Sex Discrimination Act 1995 and a monetary order was made.
2. Before this Tribunal, the appellant appealed in relation to the issue of remedy. The respondent's employers cross-appealed on the merits but parties were agreed that that aspect of the matter should be held over pending the determination of the appeal by the appellant. Accordingly, the matter proceeded before us, purely upon that issue.
3. It raised three questions.
4. Firstly, whether or not the level of award for injury to feelings was adequate, not least, having regard to the decision in Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102. Secondly, whether or not the Tribunal were correct in deducting 50% of the agreed enhanced redundancy payment which the appellant received upon her cessation of employment. Thirdly, whether or not the Tribunal have properly addressed the issue of the length of time that should be allowed for future loss, against a finding on their part that she would have been unlikely to continue in employment for any length of time because of child-caring difficulties.
5. We deal with each of these questions separately.
6. Dr Marriott, appearing for the appellant, submitted that the award of £2,000 for injury to feelings was far too low. The appellant had found her employment extremely congenial and responsible and was very upset in being required to give it up. He directed the Tribunal to the passage in the opinion of Lord Justice Mummery in Vento in which in paragraph 65 he laid down guidance, as to what he described as three bands, that should apply in relation to awards in this context. The award made by the Tribunal was in the lowest band and Dr Marriott submitted that this amounted to an error of law.
7. We have no hesitation in rejecting this submission. The matter is one for the decision of the industrial jury, which in this case is the Employment Tribunal. While we are quite prepared to accept that the appellant found her employment both satisfying and congenial, the act of discrimination was a single one, albeit running over a period of time and is quite properly to be regarded as within the lowest band. In any event, it cannot be said that the Tribunal, on reaching that conclusion, were acting perversely.
8. In these circumstances we consider this ground of appeal has no substance.
9. The next question to be considered related to the issue of the enhanced redundancy payment and the fact that the Tribunal had reduced the financial compensation, apart from injury to feelings, by 50% of the sum that was in fact paid to the appellant.
10. In dealing with this matter, it has to be recognised at once that a deduction of 50% of the sum in question cannot be supported and neither party sought to do so. The position of Dr Marriott, on behalf of the appellant, was that the payment in question, being part of the enhanced redundancy scheme, way beyond the statutory entitlement, should be regarded as ex gratia and therefore not deductable. The position taken up by Counsel for the respondent, was precisely the opposite, that it was directly linked to the issue of sex discrimination since redundancy had followed on as the means of terminating the employment as a result of the discrimination, it should be wholly deductible. He referred us to Hardy v Polk (Leeds) Ltd [2004] IRLR 420, Horizon Holidays Ltd v Grassi [1987] IRLR 371 and Rushton v Harcros Timber & Building Supplies Ltd [1993] IRLR 254 all of which were dealing with the situation in the context of unfair dismissal.
11. We consider this issue requires to be addressed on the simple basis of the normal rules of compensation. We consider there is a causal connection between the redundancy payment and the discrimination, inasmuch, that, but for the discrimination, redundancy would not have occurred. The contrary view to be established to make the claim not deductible, must be that redundancy would have occurred in any event, and that is plainly not the case in this case.
12. In these circumstances we are of the opinion that the Tribunal was in error in making a 50% deduction, and, should, in fact, have deducted the entire payment from any financial loss that it found by way of compensation. This does not apply, as Counsel accepted, to the award for injury to feelings, which is left intact as a free standing matter.
13. The third matter relates to the length of time that the Tribunal applied to the issue of future loss. In that respect the decision is as follows:

"We take the proper approach in cases such as this to be set out in the case of Ministry of Defence v Cannock [1994] IRLR 509. In other words, it is incumbent upon us to make some assessment of the likelihood that the applicant would have continued in her former employment, had she been given the opportunity to do so on terms suitable to her. We have not have the slightest doubt that the applicant was entirely sincere in her evidence that it was her intention to pursue her career with the respondents indefinitely. On the other hand, we are equally convinced that there were serious obstacles to the achievement of that ambition that had nothing to do with the respondents. The applicant has two young children. She, her relatives, and relatives of her husband made extraordinary efforts to enable the applicant to remain in employment after she returned to work in early September 2002. We acknowledge that we must make a assessment on the assumption that the applicant had been permitted to work only three days per week, but the efforts that required to be made by her and on her behalf are, none the less, indicative of the kind of problems likely to be faced by anyone placed as is the applicant. It also requires to be borne in mind that, had the applicant continued to be employed as an emergency service engineer, it would have been a term of her employment that she could be required to work over time in emergencies. In other words, if at or towards the end of her shift the applicant had been engaged in dealing with an emergency, she could have been required to remain on site until the emergency was dealt with. The matter was little explored, and though we are prepared to proceed on the basis that the number of occasions upon which the applicant would have been required to undertake emergency over time would have been few, there only required to be very few such instances to play havoc with the applicant's child care arrangements. It is also not without significance that the

applicant has chosen to embark upon a career which she quite explicitly acknowledges will not conflict with her child care arrangements. Bearing this in mind, we take the view that there is a high probability that the applicant's employment with the respondents would not have lasted a great deal of time and that it would be appropriate to award the applicant the financial loss suffered by her between 1st April and 1st September 2002, but no more."

14. In this respect, Dr Marriott argued that the Tribunal has taken a step too far in determining that there was bound to be a limit on the period in question because of the problems that the Tribunal considered to exist in relation to the looking after of the appellant's family by herself.
15. Mr Korn, on behalf of the respondents, valiantly sought to justify the reasoning that we are entirely satisfied that it is defective, although it may not necessarily have achieved the wrong results. What, therefore, we propose to do in this respect, is to remit the matter back to the Chairman for amplification, if he can, of the reasons that justify the period from 1 April to 1 September 2002. If that period cannot be justified by any further reasoning, this Tribunal will thereafter consider what order it should make in respect of future loss.
16. In these circumstances this appeal is allowed to the extent of a finding that the whole of the redundancy payment should be deducted from any award of compensation. But, on that latter issue, the matter is remitted back to the Tribunal Chairman for the further issue of the reasoning, which gives rise to the period of 1 April to 1 September 2002 to be considered. Thereafter, the matter should be remitted back to us for further consideration.