United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NIGEL WOODHOUSE (of Counsel) Instructed by: Messrs Andersons Solicitors 35 Britannia Row London N1 8QH
For the Respondent	MR MICHAEL REED (of the Free Representation Unit) Instructed by: Stevenage Citizens Advice Bureau P O Box 100 Stevenage SG1 1WJ

SUMMARY

Sex Discrimination -&- Maternity Rights and Parental Leave

Joint and several liability in sex discrimination. Level of damages.


 


HIS HONOUR JUDGE PUGSLEY

1. This is a case in which Maxine Miles failed to appear at the Tribunal hearing which took place on 15 February. Our understanding from Mr Woodhouse, Counsel, who appears for her, is that she is going to make an application for review of that decision. No such application has been made; it is not suggested that we should defer this decision until such a review is made.
2. Ms Miles had written to the Tribunal on 12 February to say:

"I hereby confirm the company Quality Hairdressing Ltd was dissolved at Companies House on 18 January 2005 and struck off the Company Register."

The Tribunal pointed out that that letter was unsworn; it was an untested statement coming from the First Respondent and they had direct sworn evidence from the Claimant and from a witness to say that on the previous Friday and Saturday, there appeared to be trading activity at the Respondent's premises. The Tribunal found, on the balance of probability, the fact asserted in the letter of 7 February was not proved. Moreover it made the point, which is very pertinent, that there was no suggestion that the company had been dissolved in any other than voluntary course of action.

3. The issues before the Tribunal relate to sex discrimination. It was the Claimant's case that since May 1997, she had been employed by the company, the Second Respondent, as a trainee and worked under the supervision of Ms Miles, the First Respondent. She was still working for them in February 2004. She had been trained and was promoted to the position of senior hair designer and trainee manager. Her line manager was Maxine Miles who was a director of the Second Respondent and a majority owner of shares in that company. Everybody was managed by Maxine Miles. The atmosphere until February 2004 seemed to the Claimant to be friendly and happy; indeed, she and Ms Miles had gone on holiday together.
4. In 2003 the Claimant had been away from work for several weeks suffering from glandular fever. She retained her managerial position and status as a senior hair designer. She returned to work in due course and worked happily for four or five months until February 2004. It was the Claimant's case, that the Tribunal accepted, but when she told Maxine Miles she was pregnant, the atmosphere changed. There was no attempt to adjust the working practice to make a risk assessment, or to help in arranging breaks which could assist. The Claimant was told that she was not ill; she was just pregnant and was the object of unsympathetic remarks.
5. The First Respondent, Miss Miles, refused to allow another employee called Louise to go and fetch the Claimant something to eat from a nearby shop as the Claimant worked on. There were inadequate facilities to keep food. When the Claimant in July attempted to talk to the First Respondent about what her doctor advised her, the First Respondent, Ms Miles, ignored her, and the Claimant left the room feeling snubbed and upset. We all have the picture of someone who, according to the decision and findings made by the Tribunal, seemed to be affronted by the fact that one of her employees was pregnant and made no accommodation for her in the tasks she had to do, including the use of bleach which, understandably, caused the Claimant some concerns as a pregnant mother. The matters are all set out in the Decision. The Tribunal's conclusions were in very damning terms. They are set out at paragraph 24.

"24.1 All in all there was a catalogue of behaviour towards her on the part of the First Respondent and the other Managers named above which goes beyond malicious and amounts to downright vicious. It was an inhumane and sustained campaign of bullying and discrimination which could not, in the circumstances of facts found as above, be reasonably seen to have been accidental or merely insensitive. It was targeted, deliberate, repeated and consciously inflicted. It not only demonstrated to the Claimant a total lack of concern for the welfare of the Claimant herself, but a callous disregard or concern for the life of her unborn child.

25. The Tribunal have no hesitation on the basis of the facts found in this case in awarding the maximum possible amount for her feelings. We do this because we are satisfied on the evidence we have heard that the allegations are true and that the Claimant's distress and suffering including anxiety and distress at being prevented from doing everything needed to protect the child, was very substantial indeed."

The award:

For hurt feelings: £25,000;

£500 for personal injury; and

£3,550.60 for their failure to pay maternity pay".

6. We have had considerable assistance from Counsel. We make no secret of it, but we are not in sympathy with certain arguments advanced by Mr Woodhouse. The basis of the argument is that the Tribunal were wrong to hold Ms Miles jointly and severally liable for the maternity pay earnings because it is said it was a liability on the company, Quality Hairdressing Ltd and it is also said that it is wrong that the Tribunal erred in making the Appellant jointly and severally liable for damages of £25,000 in respect of injury to feelings because they are a matter which should not be joint and several because it is said that a strict application of section 42(1) means that one cannot be liable unless one falls within the provisions of that section.
7. We have been referred to the decision of Anyanwu v South Bank Student Union [2001] ICR 391 in which there is an analysis by, amongst others, Lord Bingham and Lord Hope. Cases have to be seen in the context in which they are decided. The Anyanwu case was about a situation dealing with two institutions: the Students' Union and the University of London. We are not dealing with that. We are dealing with what happened in a hairdressing salon. If one looks at the decision, one comes to a crucial finding of fact. It is set out in 12.5.

"On several occasions when the Claimant went into the office to raise a complaint or ask for redress over such behaviour, she would hear the Managers laughing immediately after she left the room. The Claimant reasonably supposed this to be laughter at her expense. As salon manager we find that on balance of probability the First Respondent consciously fostered and encouraged a discriminatory culture to grow up which targeted the Claimant. She did so by this behaviour and the example she herself set other managers and this was discriminatory".

8. There is authority for making an award on a joint and several liability basis (1) Peter Way (2) Intro-Cate Chemicals Ltd v Ms Angela Mary Crouch UKEAT/0614/04/CK (Employment Appeal Tribunal) and Gbaja-Biamila v DHL International (UK) Ltd [2000] ICR 730; a decision of the President of the Employment Appeal Tribunal, Lindsay J. As Lindsay J indicated in his judgment, there may be pragmatic reasons for not making such an order. In the light of the findings of fact made in paragraph 24.1 and 12.5, we consider this is a case on which the Employment Tribunal was justified in the approach it adopted.
9. If a security guard does not really know what his job is or why he has to carry out certain instructions and, in breach of such instructions, allows cars regularly to go out unsearched and without him making any checks, it might be a matter of debate as to whether he is aiding the commission of widespread thefts of parts from the company premises. But if the security guard knows in the particular, or knows in general, that parts are regularly being stolen from his employers and his job is to make sure that he examines vehicles being driven out of the car compound and does not do it, it seems to us in plain English that he is aiding the theft of car parts. If you are a senior manager and see bullying going on in which you join and in which you foster the culture in which that happens, we unequivocally consider it is open for a tribunal to see that as coming within the ambit of being responsible under the Act. We have no doubt at all this Tribunal correctly applied the position as they saw it and that that position is open to them in law. This was aiding an unlawful act. Furthermore, we have no doubt that in "lifting the veil", the person who made this company tick was Ms Miles. If the Claimant was not paid, undoubtedly the Tribunal can draw an inference that it was at Ms Miles's behest.
10. We come, to ground 3. It is within the knowledge of all of us on this tribunal that, if one may say so, employment tribunals have, at times, to use a phrase from another area of law, tended to go out on a frolic of their own and to award sums of money in compensation which really are out of all proportion to the type of figures awarded by the Courts in personal injury cases.
11. So we are alert to the problems, if we may so, of excessive awards by tribunals which may not have the experience of knowing what the general level of award is. In his able argument, what Mr Woodhouse has effectively said, although he used language of a more eloquent nature, is that the Tribunal "went over the top". His case is that, at the end of the day, this was not a case, having regard to Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 where an award of £25,000 was justified. He says it is manifestly excessive.
12. We make the point, if we may, that actually Vento is now three years old and that is a point which is of relevance because, whilst we do not have raging inflation which has been known in various stages of this country's history, we nevertheless do have quiet inflation which devalues monetary values. At the end of the day, we have to take the case as it was before the Employment Tribunal. If Ms Miles had gone to the hearing, it might very well be that a different view might have been taken in the light of her evidence on many grounds, including the evaluation of compensation. As she did not, we have got to look at the decision of the Tribunal, as it is, reached on the evidence before them. We find no basis of saying that, on principle, this is manifestly excessive. It is a good argument that Mr Woodhouse has put that the Vento guidelines talk about long periods and this was during the currency of a pregnancy which is not, in itself, as long as some cases. But the Tribunal found very clearly that this Claimant was put through the anxiety and distress of being prevented from doing things needed to protect the child. Anyone who has any knowledge of these matters, knows that women, following the imperative needs of their own body, are primarily concerned with the child they are carrying. A woman will suffer great anguish if she is denied doing that, without good cause, which she knows is in the child's best interests and as been advised as such. We do not believe that we, sitting here remote from the Claimant's evidence, should have the arrogant imperialist view that we know better than the Tribunal which included two women and a man. They said

"It was targeted, deliberate, repeated and consciously inflicted. It not only demonstrated to the Claimant a total lack of concern for the welfare of the Claimant itself but a callous disregard or concern for the life of an unborn child".

This was a matter well within the discretion of the Tribunal. We therefore dismiss this appeal on all grounds. The Respondent did not attend the hearing. There was clear evidence before the Employment Tribunal upon which it could reach the conclusions it did on the basis of the evidence before it.