MR JAMES KASSI v MISS D EDWARDS [2000] UKEAT 708_00_2510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 708_00_2510Case No Appeal No. EAT/708/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR JAMES KASSIAPPELLANTMISS D EDWARDSRESPONDENT
Before
Mr Justice Charles Mr B V Fitzgerald Ms B SwitzerDate 25 October 2000
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE CHARLES : This appeal comes before us today by way of preliminary hearing pursuant to our Practice Direction. Our task is therefore to consider whether it raises points of law that are reasonably arguable.[2]The parties to the appeal are a Mr Kassi who is the Appellant and was the Respondent before the Employment Tribunal and a Miss Edwards, who was the Applicant before the Employment Tribunal and is the Respondent to the appeal.[3]The appeal is against a decision of an Employment Tribunal sitting at London (North) on 11 April 2000. The Extended Reasons for that decision was sent to the parties on 28 April. The decision was:
"The unanimous decision of the Tribunal is that the Respondent discriminated against the Applicant on the ground of her sex. The Respondent is ordered to pay the Applicant the sum of £1019.18 by way of compensation."
That finding was based on a finding of harassment. An allegation that the employer had not provided the Applicant with work and thereby discriminated against her was dismissed.[4]Before the Employment Tribunal the Applicant, the Respondent before us Miss Edwards, was represented by Counsel. The Appellant, Mr Kassi, represented himself. As is shown by paragraphs 9.6 and 9.7 of the Extended Reasons and as I have already mentioned, the Employment Tribunal rejected the claims made by the Applicant on the basis that she suffered less favourable treatment in the work allocated to her and by being laid off. As to the claim based upon harassment and the quantification of the damage, material findings of fact are in paragraphs 4.8 and 4.9 of the Extended Reasons which are in the following terms:
"4.8 Either on that day or the previous Friday in the course of showing the Applicant round the site they came to a room where another woman was working. She was a younger woman of 16 or 17 called Kelly who was up a step ladder stripping wall paper with a steamer. Mr Kassi, having introduced the Applicant to Kelly said words to the effect 'And sometimes we have a bit of this' and at that point, in the Applicant's words: he began groping the younger girl and the two of them began laughing. The Applicant described that Mr Kassi took hold of the girl's bottom with both his hands and squeezed. Although the young girl did not seemed distressed by this conduct the Applicant was shocked and upset by it. However she did not say anything to Mr Kassi or to the girl and she continued to remain working for Mr Kassi. 4.9 During the course of the first two weeks Mr Kassi said to the Applicant on a number of occasions words to the effect: 'men don't like women on the building site so I will squeeze you in where I can.' The Applicant sensed that despite his earlier helpful disposition Mr Kassi was becoming less enthusiastic about her working on the site. Although she was eager to learn and wanted to take up a career in carpentry and needed experience she felt that the Respondent did not really take her interest and ambition seriously because she was a woman."
[5]The Appellant, the Respondent before the Employment Tribunal, had denied the first incident and that he had made such remarks later. Today, I was unclear as to his point concerning the remarks, namely whether his position was that he denied that he had made them or whether he was asserting that in making them (or if he made them) he was just stating a fact.[6]The finding of harassment is in paragraph 9.5 of the Extended Reasons which is in the following terms: "9.5 So far as the touching of the other young woman was concerned the Tribunal decided that if that had been unwanted conduct against her (which apparently it was not) it would amount to sexual harassment by subjecting her to a detriment within the meaning of Section 6. To do such an act with the willing consent of one woman in the presence of another when introducing her to a place of work accompanied by the words: 'and sometimes we have a little bit of this' amounted in the Tribunal's view to sexual harassment of the Applicant as well. The clear implication behind the words accompanied by the touching of the other woman's bottom was that was the sort of conduct that the Applicant might expect were to she to work for this particular Respondent. That finding is not based on the remarks found to have been made in paragraph 4.9 of the Extended Reasons, namely the remarks to the effect "men don't like women on the building site so I will squeeze you in where I can".[7]The Extended Reasons, as we read them, contain no finding that those remarks amounted to harassment. The Employment Tribunal deal with quantum in paragraphs10.1 and10.2 of the Extended Reasons. Those paragraphs are in the following terms:
"10.1 Ms Rayner conceded that the claim could only be for injury to feelings. She submitted that the case was at the lower end of awards for injury to feelings. She postulated a figure of £500. Mr Kassi drew the Tribunal's attention to the fact that the Applicant had been prepared to continue working there. 10.2 Having considered the matter we consider that the appropriate award for compensation for injury to feeling in this case was in the sum of £1,000. Our reasons for departing from the Applicant's counsel's figure was that although this was only a short period of discriminatory conduct it had two particular aggravating features. The first was that there was inappropriate sexual contact which the Applicant was made to witness and from which she formed, not unnaturally, the fear that that was the sort of conduct that might have been meted out to her. To that extent the discrimination went beyond mere words. Added to that were the words of Mr Kassi repeated on more than one occasion that the Applicant would need to be squeezed in because of the attitudes on a building site. Whether Mr Kassi's comments about the attitudes on the building site were correct or incorrect and whether or not that was an attitude that the Applicant might have expected to exist upon the building site nevertheless to say that to a new worker who is just coming in to the industry would be bound to cause injury to feelings and generally act as a disincentive to someone persisting with their career in the building or construction trade. To that extent we believed the injury to feelings award should be enhanced beyond the very minimal figure submitted by Ms Raynor."
[8]It appears therefore, that the Employment Tribunal made a higher award than that suggested by the Applicant's Counsel. That is open to them but in assessing quantum it also appears that they took into account remarks which they found had been made in paragraph 4.9 of the Extended Reasons notwithstanding(i) the fact that they made no finding that those remarks constituted harassment by themselves, or in conjunction with other matters, and(ii) their findings that the Applicant had not been less favourably treated in the allocation of work or by being laid off.[9]In our judgment it is reasonably arguable that in so assessing quantum the Employment Tribunal erred in law.[10]The Notice of Appeal has been drafted by Mr Kassi in person and it focuses on and made a number of points relating to these remarks and at one stage relies on a Latin maxim demonstrating that Mr Kassi has done some legal research or sought some legal assistance. In our judgment the points that we have identified are subsumed within that Notice of Appeal.[11]Before us today Mr Kassi raised two points that, on our reading of the Notice of Appeal, are not contained within it. The first related to the questionnaire which is referred to in the Extended Reasons. In paragraph 9.3 of the Extended Reasons the Employment Tribunal made a finding that they were satisfied that he had received the questionnaire and that he had simply ignored it. Mr Kassi today told us that he had evidence from the Post Office that the questionnaire had not been delivered. That evidence was evidence he had obtained after the hearing. In our judgment, with reasonable diligence it would have been practicable for him to have obtained that information before the hearing and it would not be new evidence that should be admitted on this appeal, the test for that being the test in Ladd v Marshall confirmed in this Tribunal in the Wileman case.[12]Further and in any event in our judgment, reading the Extended Reasons as a whole, the Employment Tribunal did not place any real weight on the fact that Mr Kassi had not answered the questionnaire and certainly they do not make any inferences directly by reference to that point in reliance on the relevant provision of the Sex Discrimination Act. Accordingly, in our judgment, that point raises no point that is reasonably arguable and we do not give Mr Kassi permission to amend his Notice of Appeal to include it.[13]The second point related to the point raised by Mr Kassi on his application for a review and he directed our attention in particular to the Extended Reasons refusing that review at page 18 of our bundle, and in particular to paragraphs 3 and 4 thereof which read as follows:
"3 At a hearing for directions on 14 March 2000 which the Respondent did not attend I recorded that the principal issue for the Tribunal to decide was: 'Did the Respondent fail to provide work for the Applicant because she was a woman?' The allegation of harassment was neither referred to nor withdrawn. 4 At the outset of the hearing on 12 April 2000 the question of that harassment was identified as an issue in the proceedings. Mr Kassi did not suggest that he was in any way unprepared to deal with it. The issue was eventually determined in favour of the Applicant."
[14]That reflects a point raised by Mr Kassi in his application for a review. The argument he put to us mirrors the argument put seeking a review, namely that the focus of the claim, as he understood it, was one that he had failed to provide work for the Applicant because she was a woman and not one based on harassment. He says that if he had understood the claim to have been based on harassment, or primarily based on harassment, he would have called the 16 or 17 year old girl referred to in paragraph 4.8 of the Extended Reasons for the substantive decision to give evidence. He says he is not a lawyer and he should not be prejudiced by not having understood that harassment was going to form a central part of the case.[15]We accept that point relating he is a layman and that he should not be prejudiced but reading the grounds relied on by the Applicant in support of her complaint and, in particular, paragraphs 7 and 13 of those grounds which are as follows:
"7 I worked on Monday 26th and Tuesday 27th July. During this time I noticed another woman on the building site. However she seemed to be treated differently to me. She would allow James Kaffi to touch her inappropriately. After these few days it became clear to my employer that I would not allow him to do the same to me. As a result he began to make comments to me such as, 'Men do not like women on the building site so I will fit you in where I can'. 13. Before I began working for him he enthusiastically offered me a job however once I started working for him and made it clear that I was there to work only and would not appreciate any unwanted attention he began using any excuse to send me home."
It appears to us that Mr Kassi as a layman would have understood that a central part of the Applicant's case that he failed to provide her with work because she was a woman, related to the incident which is dealt with at paragraph 4.8 of the Extended Reasons for the substantive decision.[16]It is also apparent that at the hearing Mr Kassi did not suggest that he was in any way unprepared to deal with that allegation: that appears from the Extended Reasons on the review.[17]In those circumstances and, in particular, having regard to the paragraphs we have referred to in the grounds of complaint, in our judgment it is not reasonably arguable that there was any procedural unfairness in the Employment Tribunal proceeding to deal with the case in the way that they did and in reaching findings based upon harassment.[18]Accordingly, we will not give leave to Mr Kassi to add that ground to his Notice of Appeal.[19]The issue then remains as to whether we should attempt to re-draft his Notice of Appeal for him. In my judgment in this case that is inappropriate.[20]As we have said, the ground of appeal that we have identified as being reasonably arguable is in our view subsumed within the Notice of Appeal, we are of the view the practical course, having dealt with the two additional arguments he has raised, which we have found not to raise reasonably arguable points of law, is simply to let this appeal go forward in its present form and the Tribunal that deals with the full appeal can itself consider any additional points Mr Kassi seeks to argue on the basis of that Notice of Appeal. This judgment will be available to that Tribunal who will be aware of our views as to the points he has made today and our refusal to add them to this appeal.[21]It then simply falls to us to give directions. We will give this case Category B and a time estimate of half a day to a day.[22]We would finally mention to Mr Kassi that it seems to us that the focus of his appeal is as to quantum and we would hope that sensible discussions might take place between him and the Respondent and her representatives.