EMPLOYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Transcription

1 Appeal No. EAT/519/91 EMPLOYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 26th October 1993 Before THE HONOURABLE MR JUSTICE KNOX MR K M HACK JP MR P M SMITH MISS M COBBOLD APPELLANT MR B T SAWYER T/A IMMIGRANTS ADVISORY BUREAU RESPONDENTS Transcript of Proceedings JUDGMENT PRELIMINARY HEARING Revised APPEARANCES

2 For the Appellant MR R ALOMO (Of Counsel) Brixton Law Centre Brixton Road LONDON SW9 8EN For the Respondents NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT MR P KILCOYNE (Amicus Curiae) MR JUSTICE KNOX: This is an appeal on quantum by Miss M Cobbold from a decision of the Industrial Tribunal sitting at London (South) on 23rd July 1991 and sent to the parties on 9th September of that year when the Industrial Tribunal decided unanimously that Miss Cobbold's complaint of unlawful sexual discrimination was proved and that she was entitled to an award of compensation in the sum of 150. The Industrial Tribunal only had limited assistance from those appearing before it. For the Applicant, Miss Cobbold, a Ms Oliver appeared, who we were told was not, at the time, legally qualified. There was no one before the Industrial Tribunal on behalf of the Respondent, not even the Respondent himself, who was a Mr B T Sawyer, who traded as "The Immigrants Advisory Bureau". There is no doubt at all, and no appeal against, the decision that there was conduct by Mr Sawyer which infringed the provisions of Sex Discrimination Act 1975, for that purpose it is sufficient to read the brief findings of fact based on the evidence that Miss Cobbold and her sister gave to the Industrial Tribunal. One hardly needs to add that there was no evidence given on behalf of the Respondent, in the Respondent's absence, and there being no one to represent him. The findings of the Industrial Tribunal on this score were as follows: "As a result of the assessment of oral evidence of the applicant we find that the respondent, by his conduct towards the applicant during the short period of her employment, persistently harassed her sexually. He did so by making suggestive and offensive remarks of a sexual nature, by touching the applicant without her consent and by

3 seeking, from time to time, forcibly to kiss her." They then drew the conclusion, against which there is no appeal, in the following terms: "Such behaviour amounts, in our finding, to a detriment within the meaning of Section 6(2)(b) of the Sex Discrimination Act 1975 and also amounts to discrimination against the applicant on the ground of her sex within the meaning of Section 1(1)(a) of the Act." That of course is not a finding of two separate wrongs because the definition of discrimination in Section 1 is imported into Section 6(2)(b) of the 1975 Act. So far, so good, but the difficulties arise from the six remaining lines in the Industrial Tribunal's decision and they read as follows: "We therefore concluded that the applicant's complaint had been proved. Under the provisions of Section 65 of the Act we concluded that the applicant was entitled to an award of compensation in respect of the proved unlawful discrimination. We assessed that compensation at 150, which sum is payable by the respondent to the applicant forthwith." The Originating Application that Miss Cobbald had put in, which was presented on 20th February 1991, says this: "On 3rd December 1990 I began working for the immigrants Advisory Bureau having been placed by Tooting Job Centre." and she then describes the harassment to which she was subjected, and I need not repeat that because the findings were made in the terms that I have already read. But she goes on in paragraphs 4 and 5 of her Originating Application to say this: "4 I was very upset with this and told him [that of course is Mr Sawyer] if he persisted I would leave. He told me not to threaten him. I was eventually forced to leave on the 14th December 1990 and have not been paid my full wages to date. 5 I have since been unemployed and looking for work as a result of this experience it has been very difficult to obtain alternative employment" and she claimed compensation under the Sex Discrimination Act. The Respondent although he was not present had put in a letter in which he said, amongst other things, that her, (that of course is Miss Cobbold's) story about sexual harassment had no foundation whatsoever. It is perfectly clear that the Industrial Tribunal did not accept that view of the matter put forward by the Respondent, Mr Sawyer. So far as the evidence is concerned we have the Notes of Evidence kept by the Chairman of the Industrial Tribunal and there was evidence of upset, not surprisingly, on behalf of Miss

4 Cobbald. She is recorded as having said: "He must have known how I felt - I had tears sometimes." and then she describes again the various acts of sexual harassment. She also is recorded as having said this: "I've been looking for work since - offered one job but I didn't want where mention made of how I'd look in uniform. I've been trying to find work - secretarial work. Most places want 18 plus people now. I'm still trying. I'll get income support from next week. I tried telesales - I didn't want to talk to men so I didn't get the leads that I wanted." She was, as appears from that, a very young girl. This was her first job so far as we are aware. She was seventeen during that short period of employment in December She was not very far short of her eighteenth birthday when the hearing took place in July of There have been three points put forward in argument against the award that the Industrial Tribunal made in Miss Cobbald's favour. We had the benefit of a skeleton argument on both sides and we have had the assistance of Mr Kilcoyne, who has appeared before us as Amicus Curiae on the instructions of the Treasury Solicitor, there being no appearance or representation on behalf of the Respondent to the appeal. The grounds of appeal are stated in the skeleton argument on behalf of the Appellant as follows: "(i)failure to award the Appellant damages to compensate her for the consequences of the unlawful discrimination. (ii)failure [by the Industrial Tribunal] to provide reasons for their decision. (iii)failure to award the Appellant any or any sufficient compensation for the injury to her feelings." It is clear enough that in this type of case there are potentially two heads of compensation. The case is put very clearly by Lawton LJ in Coleman v. Skyrail Oceanic Ltd [1981] IRLR 398 when he says at paragraph 13, page 401 this: "The jurisdiction of the Industrial Tribunals to make awards of compensation derives from ss.65 and 66 of the 1975 Act. A claim for compensation should be dealt with in like manner as a claim in tort (see s.65(1)(b) and s.66(1). S.66(4) provides that `For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head'. Compensation is to be awarded for foreseeable damage arising directly from an unlawful act of discrimination. It follows that an applicant can claim for any pecuniary loss properly attributable to an unlawful act of discrimination. This is a head of damage for which Mrs Coleman did and was awarded 666. Any injury to feelings must result from the knowledge that it was an act of sex discrimination which brought about a dismissal. Injury to feelings unrelated to sex discrimination such as in this case, the circumstances that

5 leakages of information had taken place in July 1978 and that others might reasonably have suspected Mrs Coleman to have been responsible for them is not properly attributable to an unlawful act of sex discrimination." That was a different case in relation to the factual background because that was a case where there had been an unlawful act under the Sex Discrimination Act, not of a physical nature, as in this case, but because of a stereotyped assumption that a breadwinner was necessarily a male person and the background to the case was that the husband and the wife in that case were employed by two rival travel firms who thought that there was a danger of leakages of information if they went on employing persons who were married to each other while employed by rival concerns. So there was no direct correlation between the stereotyped assumption which led to the dismissal of the wife rather than the husband and the infringement of the Sex Discrimination Act so as to cause an injury to the wife's feelings of any direct nature at all, and it was on that basis that an award that in fact was made by the Industrial Tribunal of 1,000 for injury to feelings was reduced by the Court of Appeal to a figure of 100. The case has absolutely no relationship at all on that aspect of the matter to the matter which is before us but it is cited to us as authority for the fairly obvious proposition that in the typical case of unlawful sexual discrimination there may well be an economic loss, which arises directly from the unlawful act of discrimination, and separately there may well be a compensation to be awarded for injury to feelings. The problem in relation to economic loss lies in ascertaining the extent to which, if at all, it was argued before the Industrial Tribunal. Mr Kilcoyne has submitted to us that probably the best interpretation of the very brief way in which the matter was dealt with by the Industrial Tribunal is to conclude that there was no separate point made of economic loss. It is perfectly true, as Mr Alomo pointed out to us on behalf of Miss Cobbald, that there was a pleading in the Originating Application which provided a case for being argued that there was economic loss. I earlier read the passage and do not repeat it. Equally there was some material in the Notes of Evidence, which I have read, which would have provided a basis for a submission that there was economic loss. The problem arises from the fact that there is, as is very frequently the case, no note of the arguments that were adduced, and one has in this Tribunal to make the difficult decision whether or not there effectively was an argument based on a separate economic loss over and above the injury to feelings that Miss Cobbald obviously suffered. It was not disputed

6 but that, in line with many authorities of which we were referred in particular to Kumchyk v. Derby County Council [1978] ICR 1116, if a point has not been taken before an industrial tribunal it will not be legitimate for that point to be taken before this appellate tribunal, and that as a general proposition to which there are certain exceptions largely concerned with the jurisdiction of an industrial tribunal which do not arise here, was not disputed before us. The puzzle for us is to decide whether or not the point was in fact argued and on balance we have come to the conclusion that the form of the Industrial Tribunal's decision is such as to indicate that although there was material for doing it it probably was not done in the event, and on that basis it seems to us that it was not open to argue at this stage separately the question of direct economic loss as a result of the unlawful discrimination. As to the failure to provide reasons for their decision there is no doubt, that although brief, the Industrial Tribunal did give perfectly good reasons for their finding that there was unlawful discrimination. There is no issue about that. Equally, it seems to us, that there was very scant material upon which one can find what the reasons were for the compensation that they did award of 150. But if one makes the assumption that Mr Kilcoyne suggested would be the right one, and which on balance, we think probably is justified, that there was no separate argument based on direct economic loss as a result of the unlawful discrimination it must necessarily follow that the award was made in respect of injury to feelings and the success of the first argument, leads to the second argument, that there was a failure to provide reasons for their decision being effectively defeated because the reasons must, on that view of the matter, have been solely attributed to the injury to Miss Cobbold's feelings. That takes us to the third point which is, failure to award Miss Cobbold any, or any sufficient compensation for the injury to her feelings, and for this purpose we assume of course, that the whole of the 150 was attributable to that head. As regards this whether one takes what May LJ said in Alexander v. Home Office [1988] IRLR 190 as a guide or whether one takes what Lawton LJ said in the decision to which I have already made reference Coleman v. Skyrail Oceanic Ltd it does seem to us that this award of 150 is one which should not be allowed to stand because it is wholly out of line. The particular formulation that was adopted by May LJ in the Alexander v. Home Office case was this, at paragraph 13: "As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of

7 a job, then the damages referable to this can be readily calculated. For the injury to feelings, however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further, injury to feelings, which is likely to be a relatively short duration is less serious than physical injury to the body or the mind which may persist for months, in many cases for life." That was a case in which there was an award of 50 for compensation for injury to the Applicant's feelings and there was substituted by the Court of Appeal a figure of 500. In the case to which reference has already been made the "Coleman" case there was of course, as I have already mentioned, a reduction in the award so that from that point of view it is not of assistance, but it is to be noted that in paragraph 14 of his judgment Lawton LJ said this: "In my judgment, appellate courts when reviewing the assessment of compensation by Industrial Tribunals should act as they do when reviewing awards of damages by judges sitting alone. Mr Lester submitted that they should deal with awards made by Industrial Tribunals in the same way as they deal with awards made by juries. I do not agree. Industrial Tribunals are presided over by Chairmen who have legal qualifications. Reasoned decisions are given including reasons for making awards. The giving of reasons distinguishes their decision from the verdicts of juries. If they have acted on a wrong principle of law or have misapprehended the facts or for other reasons have made a wholly erroneous estimate of the damage suffered, an appellate court can interfere." That was the formulation that he adopted. The question of interference with awards below, in relation to damages for injuries to feeling, was also dealt with in Dean v. London Borough of Ealing [1993] IRLR 209 in which Mr Justice Wood quoted from what had been said in Sharifi v. Strathclyde Regional Council [1992] IRLR 259, to which we were also referred, and what was said in that Scottish case was this: "We would not, of course, be inclined to interfere with the award of the Industrial Tribunal unless it was substantially out of line with what we consider to be appropriate. In the present case, however, we have come to the view that the appropriate award of compensation would have been 1,500. We shall, therefore, allow the appeal and substitute an award of 1,500 for the sum awarded by the Industrial Tribunal." and that derives, indirectly, from what was said by May LJ in the "Alexander" case to which reference has earlier been made. Taking all those different formulations of the approach that an appellate tribunal such as this should adopt to an award for compensation to injury to feelings, this Tribunal has come to the conclusion that this award of 150 is so seriously out of line with what would be proper, that it should not be allowed to stand. It seems to us that this was not a case at the lower end of the scale. Miss Cobbold was a young person who had, not so very long ago, left school. She was

8 subjected to treatment which can only be described as deplorable and we see no basis upon which this should be regarded as a trivial case. In particular it is not to be compared with cases which have found their way into the Law Reports where, on the particular facts, the tribunal has come to the conclusion that the applicant in the case did not suffer any significant injury to her, as it usually is, or possibly, in principle, his feelings. We do not regard this case as even arguably being in that category and on that basis it seems to us that 150 is entirely out of line with any proper figure. We have come to the conclusion that we should substitute the figure of 750 and that is the award that we make. The Appeal will be allowed and there will be substituted the sum of 750 for 150.