Appeal No. UKEAT/0353/04/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 November 2004

Before
HIS HONOUR JUDGE PROPHET
MR B BEYNON
MR G LEWIS

MISS L A CARNEY	APPELLANT

1) MR ADDUR ROUF

2) MR NAROUL ISLAM 	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MARK AFEEVA
(of Counsel)
Instructed by:
Messrs McKenzie Bell Solicitors
19 John Street 
Sunderland 
Co Durham 
SR1 1JG	
For the Respondents	MISS JANE GILBERT
(of Counsel)
Instructed by:
Messrs Peter Dunn & Co Solicitors
20 Athenaeum Street
Sunderland
Tyne & Wear 
SR1 1DH	

SUMMARY

Sex Discrimination

Sexual harassment award for injury to feelings at £1,500 plus interest - having regard to guidance in Vento, award found an appeal to be far too low on the facts as found by the ET  – substituted award of £8,500 plus interest.

HIS HONOUR JUDGE PROPHET

1.	Miss Carney is a young woman who worked for about 4 months in 2003 as a barmaid at the Shagorika Restaurant in Sunderland until she left that employment.  She presented an application to the Newcastle Employment Tribunal complaining of sex discrimination in the form of sexual harassment during her employment and also of an unfair constructive dismissal, wrongful dismissal and unlawful deduction of wages.  All were resisted.

2.	The complaints came before an Employment Tribunal sitting at Newcastle on 10 and 11 November 2003 with Mr Garside as the Chairman and Mr Euers and Mrs Hunter as the lay members.  Mr McNeary solicitor represented Miss Carney and the employers were represented by Miss Gilbert of Counsel.

3.	The complaint of unfair dismissal was not pursued presumably because of Miss Carney’s length of service.  Also not pursued was the complaint of breach of contract.  The claim of unfair deduction of wages partly succeeded and for that she was awarded a small sum of £25.00.  However the principal battle ground was in respect of sex discrimination with Miss Carney alleging persistent sexual harassment against the two Respondents i.e. Mr Addur Rouf who is a partner and part owner of the Restaurant and Mr Naroul Islam who is the brother of Mr Rouf and the Head Chef.  For their part both Mr Rouf and Mr Islam strenuously denied that any of Miss Carney’s allegations were true.

4.	Consequently, the Employment Tribunal was faced with having to decide between two entirely inconsistent accounts.  The unanimous conclusion of the Employment Tribunal promulgated on 30 December 2003 as a reserved decision, was to find that the allegations by Miss Carney were correct.  Quoting from paragraph 26 of the Extended Reasons:

“…..the allegations made by Miss Carney are correct. She was subjected to humiliating treatment in the form of sexual harassment “.

Her complaint of sex discrimination was thus found to be well founded.

5.	A further hearing was necessary to determine compensation and that took place on 6 February 2004 before the same Employment Tribunal.  On this occasion Mr Greenshields solicitor represented Miss Carney and again Miss Gilbert of Counsel represented the Respondents.  The Tribunal record at paragraph 4:

“Miss Carney says that that treatment made her feel ashamed, depressed, that she did not want to go into work, she felt dirty ands she felt embarrassed.”

6.	The Tribunal had reference to the Court of Appeal decision in Vento v The Chief Constable of West Yorkshire (No 2) [2003] IRLR 102 and also to a number of other cases.  It is generally accepted that the Vento case is now the leading authority on assessing compensation for injury to feelings.

7.	The Employment Tribunal decided to assess the compensation award for injury to feelings in the sum of £1,500 plus interest and it is in respect of that assessment with which we are concerned in this appeal.  The thrust of the grounds of appeal as presented to us today by Mr Afeeva of Counsel on behalf of Miss Carney is that having regard to the guidance in Vento and the facts as found by the Employment Tribunal the compensation award for injury to feelings was far too low and that instead the award should have been within the middle bracket indicated by Vento i.e. between £5,000 and £15,000.

8.	We are reminded by Miss Gilbert who again represents the Respondents here today that this Appeal Tribunal has to be cautious about interfering with assessments in respect of compensation awards by Employment Tribunals, bearing in mind that it is the Employment Tribunal which hears the relevant evidence and is able to assess the effect on the claimant.  Miss Gilbert supplements what she says by reference to the case of Gbaja-Biamila v DHL International UK Ltd & Others (2000) ICR 730 where Lindsay J was presiding.  The head note to which she has particularly drawn our attention reads as follows:

“an appellant court could only correct a quantification of compensation by an employment tribunal where a wrong principle of assessment had been adopted or where the tribunal had arrived at a figure at which no tribunal properly directing itself could have arrived; that although consistency in awards for injury to feelings might be desirable, it was likely to be preferable that an employment tribunal, relying on its experience and good sense, should pay more regard to doing justice in the case before it; that, in any event, reviewing other awards, there was no indication that the award to the applicant was wholly erroneous; that the tribunal had to assess, not the conduct of the employers, but the injury to feelings caused by that conduct, and, in considering a subject as nebulous as injury caused to feelings by racial discrimination, the importance of the advantage of seeing the complainant giving evidence was hard to exaggerate.”

9.	That of course was a decision prior to Vento but we can accept that in general terms it is a reminder to the Employment Appeal Tribunal that our ability to interfere with a compensation award of this nature has to be exercised with caution.  When however we look at the award in this case and relate it to the circumstances and facts found by the Employment Tribunal we are quite satisfied that this award was outside the range of an award that any reasonable Tribunal could have made.

10.	Miss Carney was subject to persistent sexual harassment which appears to have extended far beyond the more minor bracket indicated in Vento.  There is no mention by the Employment Tribunal of the fact that Miss Carney would have suffered much less indignity if there had been some admittance by the Respondents that they had breached the sex discrimination legislation and thus avoided Miss Carney having to rehearse what had happened to her.  See the judgment of Morison J in Orlando v Didcot Power Station Sports & Social Club [1996] IRLR 262.

11.	In paragraph 6 of the judgment of the Employment Tribunal in their remedy hearing where they are appeared to be setting down submissions from Miss Gilbert there is this sentence:

“The treatment by the respondents was for a short period.”

Miss Gilbert has not been able to assist us today as to whether that was a submission she had made or whether it was a finding by the Tribunal.  But either way it seems to us that it relates not at all to the facts.  Miss Carney clearly suffered sexual harassment over a period that began two weeks after she began her employment and went on persistently throughout the next three months.  It cannot be correct to describe that as a short period.  It is also difficult to understand how the Employment Tribunal could have said that the physical contact was not of any great significance having regard to their earlier findings of fact at the liability hearing.

12.	A further matter which is not referred to at all by the Employment Tribunal is that Miss Carney was suffering sexual harassment not from a more junior employee but from one of the owners of the business.  In our view that ought to be a factor to take into account in awarding a suitable amount of compensation.

13.	All in all then we are satisfied that the award here was one which no reasonable Tribunal properly directing itself, and in particular having regard to the judgment of the Court of Appeal in Vento, could have reached.  We therefore quash the award and substitute for it an award of £8,500, together with the appropriate interest which can no doubt be agreed by the legal representatives.