MS MARGARET DESMOND v SAFEWAY STORES PLC [2001] UKEAT 1330_00_1004

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1330_00_1004

Case No Appeal No. EAT/1330/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS MARGARET DESMONDAPPELLANT

SAFEWAY STORES PLCRESPONDENT

Before

MR COMMISSIONER HOWELL QC

MR J C SHRIGLEY

MR N D WILLIS

Date 10 April 2001

[1]APPEARANCES For the Appellant PETER WARD (of Counsel) Instructed by: Messrs J R Jones Solicitors 56A The Mall Ealing London W5 3TA MR COMMISSIONER HOWELL QC In this appeal Ms Margaret Desmond seeks to have set aside as erroneous in law, the Decision of the London North Employment Tribunal awarding her £3000 compensation for one aspect of a sexual discrimination claim she had brought against her former employer, Safeway Stores PLC.

[2]The Decision making that award was contained in Extended Reasons sent to the parties on 7 September 2000 at pages 7 - 9 of the appeal file before us, after a remedies hearing before a full Tribunal on 20 July 2000.

[3]The discrimination had been found by the Tribunal in an earlier Decision, after the full hearing of the complaints. That Decision is also before us at pages 95 and following of the appeal file, set out in Extended Reasons sent to the parties on 17 February 2000, after a hearing spread over five days in October 1999 the previous year.

[4]The events which gave rise to those proceedings were tragic. Ms Desmond was employed as an accounts administration controller, with Safeways, from the end of January or February 1990 onwards. At the time of the events giving rise to the complaint, she was working as an assistant to the Store Manager in February 1999 and was some four or five months pregnant. She had had some previous difficulties in the pregnancy, about which she had seen her doctor in December 1998, and had subsequently been diagnosed as diabetic during her pregnancy.

[5]She brought her proceedings against the employers after she had had to stop work on 1 April 1999 suffering from stress related illness in particular, and what she said were the consequences of their failure to provide the proper support for her, as one of their pregnant employees, and this was the basis of the alleged discrimination against her as a woman.

[6]Very shortly after she had had to stop work, she went into premature labour, and a son was born to her, but tragically died within a few hours of his birth, because he was so premature. The only ground, out of the many grounds on which she had alleged sex discrimination against her employers, which the Tribunal found proved was in one area which formed part only of one of her heads of complaint. That as recorded in the Extended Reasons of 17 February 2000 at pages 4, 6 and 12 was that the employers, the Respondents, had failed to provide sufficient cover for her when she had to bend down in carrying out pick-ups from the cash tills and place money in the chute at the front of the store, which was the cashing up operation which was one of her duties, as Accounts Controller.

[7]The Tribunal found that the Respondent's failure to provide adequate support for her had amounted to sex discrimination against her, in that they had omitted to take the requisite action when she was pregnant, and that they therefore treated her less favourably.

[8]The particular factual basis for that finding is recorded further in paragraph 6, which was that the failure of support was in a fairly limited sense, which was not that she had been required, following the notification of her pregnancy, to actually lift large cash bags out of the safe herself, and on to counters and back again: help for that had indeed been provided by the Respondents; but merely that there had been a failure by the Respondents to provide support quickly enough when she required it, so that there was a certain amount of waiting around involved. Again in paragraph 12, that although she had not continued to have to lift heavy money bags in and out of the safe, she was left too much on her own, without adequate support, carrying out the pick up of the money from the actual cash trays in the tills, and in bending down and sending the money down the chutes. These we were told by Mr Ward, who has helpfully appeared on behalf of Ms Desmond before us on this preliminary hearing, were at a level below, beneath the level of the tills themselves.

[9]That was the one head of sex discrimination found. All her other complaints which alleged a much wider pattern of sexual and racial discrimination against her, were rejected by the Tribunal in their Decision for the reasons they gave, and no appeal against that decision is now before us.

[10]The appeal against the award of compensation which the Tribunal made is, however, pursued on four grounds, which Mr Ward has outlined before us. The Tribunal's Extended Reasons of 7 September 2000 show that that award of £3000 was made specifically under the heading of "Injury to feelings" as a result of the particular discrimination which they had found to be proved, namely the failure to provide support in that one aspect of her work.

[11]The Tribunal specifically rejected contentions that aggravated damages should be awarded, and also rejected a claim that a much larger sum should be awarded for loss of earnings, since unhappily, the Appellant has had a prolonged period off work following the premature birth of her son, and did continue for at any rate quite an appreciable period of time to suffer from stress-related illness, and the general effects of what had happened.

[12]Mr Ward's first submission was that the Tribunal had erred in not awarding an amount for loss of earnings. The particular ground on which that submission is made is that in the Tribunal's recorded reason in paragraph 5 of their Extended Reasons, for declining to make any award under that head, they had misstated the factual position as to the evidence before them, and had therefore failed to address material evidence on that issue. What the Tribunal had said was this, in paragraph 5:

"Unfortunately the Applicant has not provided the Tribunal with any evidence medical or otherwise to support her claim that it was reasonably foreseeable that the discrimination, the Tribunal found proved, had prevented her from working. The Applicant has, therefore, failed to establish that as a result of the Tribunal's finding of sex discrimination she was unable to work. And that this because she was provided with insufficient support, when she was pregnant, for carrying out the pick up from the tills and sending money down the chute."

That, Mr Ward submitted, was an indication that the Tribunal had failed to address evidence which he said had been before them; alternatively, was an inadequate explanation by the Tribunal of their reasons for rejecting such evidence as there was. He showed us a number of letters referred to in his Skeleton Argument, and in the bundle before us, which he submitted contained, at any rate, some indications that the Applicant's prolonged period off work had been related to the difficulties with bending and lifting which had been identified by the Tribunal as the basis of the discrimination against her.

[13]The assessment of the weight and evidence of that kind is, of course, a matter for the Tribunal of fact to determine, and not for this Tribunal to rehash on appeal. Nevertheless, we have been satisfied by Mr Ward's argument that there is, at any rate, an arguable case to be made that this Tribunal here erred: first in failing to identify the various indications he put before us as constituting, at any rate, some evidence on the Appellant's behalf, on this issue.

[14]And secondly, or alternatively, that in their reasons for not accepting the submission, as expressed in the passage we have quoted, the Tribunal had failed to make it sufficiently clear whether what they were saying was that they had not considered what was put before them, under this head, to be evidence at all, or whether they were saying that they were considering that evidence but were rejecting it, for reasons which Mr Ward said, were not sufficiently explained in their Statement of Reasons.

[15]Again, I think Mr Ward readily accepted that the evidence before the Tribunal, the documentary evidence which he identified, was not the strongest evidence in the world, but nevertheless, he said there was an arguable point that the Tribunal had failed to deal with adequately in their Decision. We accept that that gives rise to an arguable point, and we will accordingly direct that the case should go forward for a full hearing of the appeal on that issue.

[16]We take a similar view of his second point, which was that the Tribunal's Decision had failed to include either any award for a claim for personal injuries which had been made, or any explanation as to why that claim had been rejected.

[17]Again, the evidence that we have been shown for the purposes of this preliminary hearing, which may of course not be the whole of the story, is, in our judgment, far from establishing a concluded case for awarding damages on that basis, and is far from establishing that a personal injury of an identifiable kind has necessarily been caused by the particular, and fairly limited aspect of sexual discrimination found by the Tribunal. But Mr Ward has pointed to, at any rate, some indications in the evidence, and in the Tribunal's findings at the earlier hearing, that having to bend over tills, to deal with the cashing up process, may have had some relation to the Applicant's physical and emotional difficulties which ensued, and that therefore there was, at any rate, a material point to be addressed by the Tribunal, on whether that head of compensation was established on the facts.

[18]Even if that is not so, we have been satisfied that there is an arguable ground for sending forward that issue to a full hearing of the Employment Appeal Tribunal, in that as specifically recorded in paragraph 3 of the Tribunal's Extended Reasons, on the compensation hearing, there was a specific submission, on behalf of the Applicant, that as a result of her difficulty with lifting heavy items, and/or bending down to send money down till chutes, some personal injury to her was foreseeable, and impliedly, that therefore the question of compensation, including what subsequently did happen to her, should have been addressed. The Tribunal's stated reasons appear not to address that issue in specific terms, or at least, appear not to make it clear, the reasons why they thought that contention was not worth addressing.

[19]So we will direct that the case should go forward to a full hearing of the Employment Appeal Tribunal on those two issues. We reject Mr Ward's third submission that, insofar as it related only to compensation or the injury to the Applicant's feelings, the Tribunal's award of £3000 was perversely low, and therefore ought to be set aside by this Tribunal, on appeal. He referred us to the case of ICTS (UK) Ltd v Tchoula where this Appeal Tribunal, under Judge Peter Clark, went into the various possible awards which had been made in a number of cases on discrimination issues. We have not been persuaded either that the judgment of the Appeal Tribunal in that case was seeking to lay down hard and fast limits which had been breached by the Tribunal in this case, or that the Tribunal's award in this case under the heading "Injury to feelings" was in any way inconsistent with anything said by the Appeal Tribunal in that case.

[20]As they made clear in their judgment at page 648, the issue which has to be considered on an appeal against the quantum of an award for injury to feelings is whether that award is so manifestly excessive, or so manifestly too low, as to justify interference by the appellate tribunal on an issue on a question of law. We have not been persuaded that in view of the nature of the discrimination found in this case, which was of a relatively minor nature compared with the other allegations that had been made, and also of the relatively minor nature compared to the examples given, even in what was referred to as the "lower category" in Tchoula's case, that there is any arguable ground for saying that the award made in this case was so perversely low, as to warrant interference by the Appeal Tribunal, on appeal. Accordingly, we dismiss the appeal as regards that contention.

[21]Finally, Mr Ward's fourth point was a relatively minor, but important point, namely, that the Tribunal's award of compensation apparently omitted any award or consideration of whether interest should be awarded on the £3000 itself. That, Mr Ward submitted, was a breach by the Tribunal of the apparently mandatory requirements of the Employment Tribunals Interest on Awards Regulations 1996 SI 2803; under Regulation 2(1)(b) of which a Tribunal, in making an award of compensation for discrimination, is now obliged to consider whether to award interest on the compensation.

[22]That appears to be so whether this has been raised as an issue before it by the parties or not; and the Tribunal is also by Regulation 7(2) obliged to include in its written Statement of Reasons, its reasons for not making an award of interest, if that is its decision. The Extended Reasons of the Employment Tribunal here contain no indication of whether the issue of interest has been considered by the Tribunal, and contain no express statement of reasons for any decision not to award interest, as apparently required by Regulation 7(2).

[23]That appears to us, to give Mr Ward on Ms Desmond's behalf, a clearly arguable additional point in its own right, for pursuing this appeal, and accordingly, we will direct that that separate issue should be included in the issues to be considered by the full Tribunal at the hearing of this appeal.

[24]For those reasons, we will direct a full hearing of the three issues we have identified. Insofar as the Notice of Appeal raises or sought to raise further issues, we dismiss them. We will direct that the case should be set down in listing Category C, estimated length of hearing, half a day and we will direct that Skeleton Arguments should be exchanged between the parties and lodged with the Employment Appeal Tribunal office not later than 14 days before the date to be fixed for the full hearing. We do not, at the moment, see that it is necessary to direct that the Chairman should be requested to provide any of his Notes of Evidence. If, of course, either of the parties take a different view when preparing for the case, then they may have to make a further Interlocutory Application in the usual way.