Appeal No.	 EAT/656/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 October 1999

Before
HIS HONOUR JUDGE PETER CLARK
MISS C HOLROYD
MR W MORRIS

ROSELEC LTD	APPELLANT

MS A J CASHMORE AND ANYSTAFF RECRUITMENT LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

The Appellant neither present nor represented.		

JUDGE PETER CLARK:
1	This morning a telephone message was received at this Tribunal that the Representative of Roselec Ltd, Mr Murray, was unable to attend due to illness.  He explained that no discourtesy to the Court was intended and invites us to decide this preliminary hearing on the papers before us.   That we have done.  

2	This appeal raises a short point on the assessment of compensation for injury to feelings following a successful complaint of unlawful sex discrimination brought by the Applicant, Ms Cashmore against 1) the Appellant, Roselec Ltd and 2) Anystaff Recruitment Ltd.  

3	In short, Roselec is a small electrical engineering business and Anystaff is an employment agency.  The applicant was on the books of Anystaff.  

4	A vacancy arose for a power wirer at Roselec’s premises.  The applicant was experienced in such work.  On the 18 September 1997 she was put forward for the job by Mr Hedges of Anystaff;  Mr Yeomans of Roselec said the job was of a heavy nature for which he thought a male operator would be more suitable.  Mr Hedges passed onto the Applicant that he was “very sorry”.  When she enquired whether it was because “she was a woman” his response was “he was not compelled to say”.  

5	On these facts an Employment Tribunal sitting at Birmingham on the 4 January 1999 upheld her complaint of sex discrimination against both respondents.  So far as Roselec was concerned that prospective employer had unlawfully discriminated against the applicant contrary to Section 1 and 6(1)(c) of the Sex Discrimination Act 1975.  Anystaff, as an employment agency, had unlawfully discriminated against her, so the Tribunal found, contrary to Section 6(2) or Section 15 of the Act.   Pausing there, we would have thought the claim against the employment agency succeeded under Section 15(1).

6	Liability having been thus determined by a decision dated 27 January 1999, the Employment Tribunal went onto consider the question of remedies at a further hearing held on the 3 March.  

7	In that remedies decision, promulgated with extended reasons on 26 March 1999, the Employment Tribunal found that the Applicant’s total loss of earnings before finding other employment was £1013.60, which they divided equally between the two respondents, £506.80 each.  

8	As to compensation for injury to feelings the Employment Tribunal concluded, at Paragraph 11 of their remedies decision reasons, that there were two acts of discrimination; by the first respondent Roselec in rejecting the applicant employment because she was a woman, and by the second respondent, Anystaff, who were aware of that reason for her rejection by Roselec and then either aided and abetted the unlawful act of Roselec or themselves, committed an unlawful act, we would add contrary to Section 15(1).  

9	Having concluded there were two separate acts of discrimination, the Employment Tribunal awarded the applicant £3000 against each respondent for injury to her feelings.  

10	The point taken in this appeal brought by Roselec only is that the Tribunal fell into an error by making a double award of compensation for injury to feelings.  Although both respondent’s were liable to the applicant, the injury to feelings was the same flowing from both respondents’ unlawful acts.  Consequently, assuming that compensation for such injury to feelings was £3000 on the Employment Tribunal’s assessment, the two respondents ought to have been liable for half that sum in each case in the same way as the loss of earnings figure was divided between them.  

11	We say no more than that we think that this point is arguable and should proceed to a full hearing.  For that purpose we direct that the appeal be listed for 1 ½ hours, category C.  There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full Appeal hearing.  Copies of those skeleton arguments to be lodged at the same time with this Tribunal.  There are no further directions.