JOSEPH LANZANTE T/A HAIR UK v MISS M C JEFFERIES [2001] UKEAT 0702_01_2510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0702_01_2510Case No Appeal No. EAT/0702/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
JOSEPH LANZANTE T/A HAIR UKAPPELLANTMISS M C JEFFERIESRESPONDENT
Before
Her Honour Judge A Wakefield Mr D J Hodgkins Cb Mr P M SmithDate 25 October 2001
[1]APPEARANCES For the Appellant MR F AGHOVIA Representative Instructed by First Business Support 12 Westminster Court Hipley Street Old Woking Surrey GU22 4AB JUDGE A WAKEFIELD This is an Ex Parte Preliminary Hearing of an appeal by Joseph Lanzante trading as Hair UK against the decision of an Employment Tribunal sitting at London South by which it was found that the Appellant had discriminated against Miss Michelle Jefferies on grounds of her sex by subjecting her to unwanted sexual harassment.[2]The Employment Tribunal awarded compensation totalling £24,125 which included a sum of £16,000 for injury to feelings together with indemnity costs from 5 September 2000 to be paid by the Appellant to the Respondent.[3]The appeal is on two grounds. The first is that the sum of £16,000 was so excessive in all the circumstances as to be an error of law. The other ground of appeal is that the Employment Tribunal erred in law in making the costs order which they did.[4]We are satisfied that the appeal should go forward to a full hearing on both grounds. As to the damages for injury to feelings it was made in circumstances where the Respondent, a lady of 28 years, had been employed by the Appellant for only six weeks. She had on the findings of the Employment Tribunal being subjected to offensive remarks and behaviour by the Appellant throughout this period and had witnessed similar behaviour as regards other female members of staff. Unable to tolerate it any longer, she left her job as business development manager.[5]In paragraphs 8, 14 and 15 of the Remedies Decision, the Employment Tribunal said, as relevant to this appeal, the following:
"Before working for the Respondent she was confident and liked meeting people. She is now more cautious when meeting people and has less confidence."
Insofar as injury to feelings is concerned, we do feel that this is a bad case. Despite the Applicant indicating that the conduct was unacceptable it persisted. There were aggravated circumstances, the perpetrator was the boss; that it continued after he was asked to stop. Mr Lanzante took the view that "I am the boss, I'll behave as I like". We also take into account the Respondent's behaviour at the previous Tribunal (that is referring to the liability hearing) and the words which he then used which are recorded in our earlier decision. We also take into account that the Applicant was employed for six weeks and that there is a continuing effect on her confidence which continues although we are pleased that recently she started in a higher paid position. Taking all those factors into account and including the aggravated element we make an award for injury to feels in an inclusive sum of £16,000.00."[6]We consider that it is arguable that that award was an erroneous estimate of the damage actually suffered by the Respondent and fell outside the permissible bracket. It is also arguable in our view whether the award should have been increased in any way to reflect the Employment Tribunal's view of the Appellant's behaviour in the course of the liability hearing.[7]As to the award of costs the Employment Tribunal said this at paragraphs 16 and 17:
"We consider that the Respondent has acted unreasonably in the defence of these proceedings. On the first day the proceedings started late, the Respondent had no witness statement despite his representative having said that he had asked Mr Lanzante to prepare one. This was a case that should have been dealt with in the day. We have been shown correspondence which was without prejudice save as to costs. The Applicant clearly took up the recommendations of the Tribunal to assist them in reaching agreement. We spelt out the guidelines and the way that we were looking at it. The hope was that it would save both the Respondent and the Applicant extra costs and the inconvenience of having to come back. The Respondent refused to settle on a figure which was over £4,000.00 less than the Order by the Tribunal. The Respondent behaved unreasonably. We make an order that the Respondent do pay the costs incurred by the Applicant since 5 September 2000 (that was the date of the first liability hearing). Such costs to be taxed (if not agreed) on the appropriate County Court scale on a full indemnity basis."
[8]We consider that it is arguable that in making that Order the Employment Tribunal took into account matters which they should not have taken into account and failed to take account of relevant matters, in particular the fact that there had not been any Order that a witness statement be prepared and the fact that the offer to settle, which had been made by the Respondent, had only been received the afternoon before the remedies hearing.[9]The appeal will therefore go forward to a full hearing. Category C – Estimated time half a day and skeleton arguments not later than 14 days prior to the full hearing.