LOUISE MARY WATERS v 1) JAMIE GRIFFIN 2) CENTRE MARKETING (UK) LTD 3) ROSELAND LEISURE LTD [2001] UKEAT 706_00_1710
[1]APPEARANCES For the Appellant MS DEBBIE GRENNAN (of Counsel) Instructed by: Messrs Every Phillips Linford Brown 31-32 Southernhay East Exeter Devon EX1 1NS For the Respondents No appearance or representation by or on behalf of the Respondents LORD JOHNSTON This is an appeal at the instance of the Applicant against a Decision of the Employment Tribunal which found that she had been discriminated against in terms of the Sex Discrimination Act by her employers, and in particular, the first and second Respondents, who were not represented at the hearing before the Employment Tribunal and are not represented before us, though they have had intimation of both hearings. The issue before us was limited to the question of compensation.[2]Ms Grennan who appeared for the Appellant focused upon the approach of the Tribunal in their Decision and in particular, with regard to compensation, on paragraphs 7 and 8, the former dealing with the loss of earnings and the latter dealing with injury to feelings. Her approach was based on the fundamental and irrefutable proposition that in terms of the statute, a tribunal assessing damages in relation to sexual discrimination is obliged to apply the common law of the land in relation to tortious wrongs, and that in turn requires the well known test to be satisfied firstly as to whether or not the wrong materially contributed to the injury claimed, and secondly that the injury claimed is causally connected to the wrong, so long as it persists. In simple terms, Ms Grennan's approach both in relation to loss of earnings and injury to feelings, was that the Tribunal had essentially looked at the matter from the point of view of justice and equity, rather than against the common law principle, and she maintained that this was to misunderstand the distinction between damages for sexual discrimination and damages in relation to unfair dismissal.[3]With this general proposition we agree, and we also are satisfied that in limiting both the loss of earnings claim and the injury to feelings claim to a certain period of time, and in particular with regard to the latter, not having apparently accepted that the conditions complained of by the Appellant were not directed to the wrong, the Tribunal have misdirected themselves in that particular respect. Again, with that proposition we agree. The Tribunal do not seem to have appreciated that they were obliged to accept that all the consequences flowing directly from the wrong should be reflected in damages, whether in relation to loss of earnings or injury to feelings, so long as both conditions exist, and any arbitrary cut-off point which appears to have influenced the Tribunal both in relation to loss of earnings and injury to feelings is inappropriate and, indeed, wrong in law.[4]We are, of course, unable to make any alternative assessment, not having heard the evidence, and we also consider it is inappropriate that the Tribunal who heard this particular matter initially should re-hear it, because they would not be able to approach the matter with an open mind for understandable reasons, having already considered the matter.[5]In these circumstances and with great regret, in view of the history of this case, which is most unsatisfactory but not necessarily through the fault of the Appellant, we will allow this appeal and remit the matter back to a freshly constituted Tribunal to consider the issues of compensation in relation to both loss of earnings and injury to feelings in the terms of the principle we have enunciated which would require evidence to be led in both respects if the matter cannot be settled.