JAMES KASSI v MISS D EDWARDS [2001] UKEAT 0708_00_0310

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0708_00_0310

Case No Appeal No. EAT/0708/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

JAMES KASSIAPPELLANT

MISS D EDWARDSRESPONDENT

Before

Mr Justice Lindsay

Date 3 October 2001

[1]APPEARANCES For the Appellant THE APPELLANT In Person For the Respondent THE RESPONDENT In Person MR JUSTICE LINDSAY (PRESIDENT) We have before us, as a full hearing, the appeal of Mr James Kassi in the matter Miss D Edwards v James Kassi . James Kassi, an individual, is the erstwhile employer of Miss D Edwards. Both Mr Kassi and Miss Edwards have been before us in person and both should be complimented on the moderation of their arguments and the good sense of their presentation.

[2]On 19 November 1999 Miss Edwards presented an IT1 for Sex Discrimination against Mr Kassi. She had been employed only from 26 July to 16 August 1999. It is to be noted that her employment ended more than 3 months before her IT1 was presented. Her case included an allegation that whereas another employee allowed Mr Kassi to touch her on 26 or 27 July 1999 she, Miss Edwards, would not. She said that as a result of that Mr Kassi began to use any excuse to send her home without work.

[3]On 4 April 2000 the Employment Tribunal allowed Miss Edwards' case to proceed even though it was out of time. Mr Kassi's IT3 denied that the other employee had been treated as Miss Edwards had alleged and put her to strict proof of her allegations. On 11 April 2000 there was a hearing at London (North) under the Chairmanship of Mr T P Ryan. Mr Kassi was in person.

[4]The further history of the matter is that on 28 April 2000 the Employment Tribunal sent to the parties the decision and Extended Reasons and the unanimous decision of the Tribunal was:

"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."

[5]So far as concerned the incident of 26 or 27 July 1999, the Employment Tribunal held as follows:

"The following Monday 26 July Mr Kassi began to show the Applicant round the site. 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 wallpaper 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." And then in their paragraph 9.4 the Tribunal said this:

"Bearing in mind that the burden of proof remained upon the Applicant throughout and reminding ourselves of all the features of the guidance we were satisfied on the balance of probabilities that Mr Kassi had behaved towards the other younger woman in the way described and that he had made the comments that were attributed to him by the Applicant."

And that is a reference to 4.9 of the Extended Reasons where one finds this as the finding of the Tribunal:

"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.""

[6]The Tribunal, commenting not on the "squeezing in" expression but the witnessing of the groping, said this:

"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 she to work for this particular respondent."

[7]Mr Kassi had in his evidence before the Tribunal denied the incident but his evidence on that particular topic had been rejected, although it was accepted on others. But it was held that there had been no sex discrimination in relation to work not being given to Miss Edwards or to her eventual dismissal. In 9.7 the Tribunal said:

"Without hesitation we came to the view that this Applicant was not laid off at the end of her three weeks because of her sex."

And also a little later in 9.7:

"The Tribunal was not satisfied … either that there was a difference of treatment or that in any event such treatment was on the grounds of her sex."

[8]Miss Edwards' Counsel had (as, it seems to us, rightly) conceded that on those findings the compensation could only be for injury to feelings and Miss Edwards' Counsel had submitted that the appropriate figure was £500. There is no note of any evidence given on the subject of injury to feelings and at the preliminary hearing at the Employment Appeal Tribunal on 25 October 2000 the only point in terms held to be arguable and fit to go to full hearing which we now represent was that the Employment Tribunal may have erred in law in the way they assessed the quantum of compensation. Mr Kassi has accepted that that is, in effect, his best and, indeed, his only truly arguable point. Even if he had not accepted that, it seems to us that it is the case that the only arguable point of law is as to the Employment Tribunal's approach to quantum.

[9]Notwithstanding that Miss Edwards' Counsel had argued for £500 the Employment Tribunal held the figure to be £1000 and they said this:

"Our reason 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. (That was Miss Edwards' Counsel) "

Miss Edwards' written case had included this:

"Throughout the three weeks I was working at the building site my employer constantly made comments such as, "

Men don't like women on the building site". These constant comments made me feel inferior to the other men."

[10]Without having notes of whatever oral evidence was given in relation to injury to feelings it is difficult for us to deal with the matter in any great detail. We are not in a position to say that there was no evidence whatsoever as to injury to feelings nor to say precisely what the injury to feelings was.

[11]Accordingly, the sort of errors of law with which we are concerned do not involve an investigation of whether the finding which we have mentioned was supported by evidence given. That is not an argument we can deal with, but there is an argument that was identified partly by Mr Kassi in his notice of appeal and partly by way of clarification at the preliminary hearing on 25 October which is that, in bringing into account the remarks made about needing to "squeeze in" Miss Edwards, the Tribunal was bringing into account and adding as if something to be compensated for a feature that had not, in fact, been held by the Tribunal to be discriminatory or to have been any relevant form of less favourable treatment.

[12]The necessary causal link between a wrongful or illegal act on the one hand and consequential loss to be compensated for is said to be missing because there is no finding in the whole of the Extended Reasons that the "squeezing in" remarks, if I can them that, represented some wrongful or illegal act.

[13]Put in another more formal way, the "squeezing in" remarks were not held to offend Section 1(1)(a) of the Act or Section 6(2)(a) or (b) and so, in relation to the "squeezing in" remarks, there was no holding that the complaint was well founded and thus there was nothing that could lead to compensation, so far as concerned those remarks, under Section 65(1)(b) and Section 66(4).

[14]In our view the "squeezing in" remarks were not so manifestly offensive or so manifestly likely to cause injury that it went without saying that they caused injury to feelings and, as we have noted, the Tribunal found that there had been no improper failure to give work to the Applicant or that the decision to dismiss her was by reason of her sex. It does not suffice to prove that the remarks were in breach of the Act merely to hold that the remarks were made. The Act is a not a charter to compensate for any injury to feelings, but only certain kinds of injury to feelings, namely that injury which is consequent upon, or reasonably foreseeable as likely to be consequent upon, a breach of the Act.

[15]As to the "squeezing in" remarks, no breach of the Act was actually found. One cannot say that because the Employment Tribunal compensated for injury to feelings by reason of those remarks they must have thought that the remarks were in breach because that would be a reasoning back to front.

[16]So we see force in Mr Kassi's objection, as clarified at the preliminary hearing of 25 October. We do believe that there was error of law in this limited respect. Thus, of the two so called aggravating features which increased the compensation, one of those features can be seen not to exist or, at any rate, cannot be seen to have existed.

[17]It would thus be opened to us to remit a question for reassessment by the Tribunal below, but we have to bear in mind proportionality. The appeal itself could barely be described as proportional with only £1019 at stake. A reassessment would be a hearing that dealt with an even smaller figure.

[18]We have discussed this point with Miss Edwards. To her considerable credit, she takes the view that she was chiefly interested in the principle lying behind the case and she would not resist, as I understand it, us doing our best to provide an alternative figure, were we to find, as we have, that there was error of law in the reasoning of the Tribunal below.

[19]What we should therefore do is not to remit the matter for reassessment, which would cause the parties further expense, considerable further delay and anxiety. We shall instead fix the figure ourselves here and now. We have no reason to see Miss Raynor's (that is to say, Miss Edwards' Counsel below's) figure of £500 to have been inadequate. It was, no doubt, a figure suggested in argument by responsible Counsel, who had been there during the evidence, as a figure that could reasonably be argued for.

[20]In our view it is appropriate that we allow the appeal, that we set aside the award of £1019 and that we fix the compensation instead at the £500 which Ms Raynor had argued for. That leaves over the question of interest. If the whole capital sum is a matter that is barely proportionate then, of course, interest is even less a matter that should be remitted to the Tribunal below.

[21]What we shall do is to rise shortly for the parties to have a brief discussion between themselves as to interest. Some interest could fairly be required by Miss Edwards but, rather than remitting the matter for a computation of interest, we suggest that we rise for ten minutes or so to give the parties an opportunity to discuss what is appropriate for interest and only if they fail to agree will we have to give a ruling on the subject. I notice that at the end of preliminary hearing the parties had drawn to their attention that sensible discussion might take place and, as I had mentioned earlier, both parties have appeared before us to take sensible attitude. I would thus hope that, given a short opportunity, they could agree what, if any, interest should be paid. So we will give time to discuss. If they can agree interest then they must tell the associate and we will come back and hear what they have agreed. If they fail to agree interest then we will have to rule upon it.