EAT/1167/02/TC MISS H L LOOMES v TAXIBANK TAXIS UK PLC [2003] UKEAT 1167_02_3101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1167_02_3101Case No Appeal No. EAT/1167/02/TC EAT/1168/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
EAT/1167/02/TC MISS H L LOOMESAPPELLANTTAXIBANK TAXIS UK PLCRESPONDENTEAT/1168/02/TC MISS L K LUPTONAPPELLANTTAXIBANK TAXIS UK PLCRESPONDENT
Before
His Honour Judge J McMullenDate 31 January 2003
[1]APPEARANCES EAT/1167/02/TC For the Appellant EAT/1168/02/TC For the Appellant Written representations on behalf of the Appellant Written representations on behalf of the Appellant HIS HONOUR JUDGE J McMULLEN QC This case is about the assessment of compensation for sex discrimination. It arises out of a Reserved Decision by an Employment Tribunal sitting at Exeter on 24 September 2002, promulgated with Extended Reasons on 22 October 2002. The Tribunal was constituted as Mr B E Walton, Chairman, Mrs B R Bowen and Mr S T Johnson.[2]The Applicants were represented by a solicitor, the Respondent by a consultant. The Tribunal heard claims of sex discrimination and breach of contract. The Tribunal decided that the complaint of sex discrimination by Miss Lupton was well founded. Her complaint of wrongful dismissal was dismissed.[3]A complaint of sex discrimination by Miss Loomes was similarly well founded and her claim of wrongful dismissal in breach of contract was upheld. She suffered no further damage which was not compensated for by the money she received on her termination, and it made no Order.[4]The Tribunal decided that it would make a recommendation under the Sex Discrimination Act s.65(1)(c ) that the Respondent, within a month, if it had not already done so, set out and make available to the staff in some prominent place, an equal opportunities policy, and make it clear by a warning that any sex discrimination would not be tolerated.[5]The issue on appeal is the further Decision by the Tribunal that in respect of the two findings on sex discrimination, it was not just and equitable to award any compensation. Against that Decision an appeal has been launched by both of the Applicants.[6]In Skeleton Arguments produced today by solicitors acting for both Applicants, it is contended that the Decision was perverse. Reference is made to the witness statements of both of the Applicants. During the course of our pre-reading of the papers in this case, an associate was directed to make contact with the solicitors, concerning the witness statements which were said to be enclosed, which were not. These were not forthcoming.[7]Nevertheless, as will become apparent, the Tribunal did not uphold the whole of the cases of the Applicants for sex discrimination. The witness statement, since it is included in the Skeleton Argument, is the Applicant's description of how she felt about the discrimination which she was alleging. But the best insight is that of the Employment Tribunal which, having sorted those claims which succeeded from those which did not, would therefore appropriately attribute injury to feelings.[8]The Applicants were working as a VDU operator (Miss Lupton) and the office manager (Miss Loomes) of the Respondent Company, which is a taxi management business. It operates nationally and the control room is based in Plymouth. They were appointed prior to the business starting up in October 2001.[9]Complaints were made by both of the Applicants of language by other employees and of failing to deal with the complaints properly. During the course of the Reasons given by the Tribunal, some of the Applicants' complaints were held to be well founded and some not. It was noted that apologies were given for those which the Respondent accepted to have occurred.[10]The Tribunal thus found that there had been sexual harassment, that is within the definition:
" unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work."
It noted that this can include unwelcome physical, verbal or non-verbal contact. The definition comes from the 1991 European Council Recommendation 92/131/EEC. The Tribunal found that the relevant employee's conduct had fallen within that definition but then said this in respect of the claims made by Miss Lupton:
"……but in the context [they]are so trivial that to award compensation would be inappropriate. They had no substantial effect on the applicant. Whilst we do not approve of what is commonly accepted as "office banter" we do not consider that these complaints warrant compensation."
As to Miss Loomes, the supervisor, having upheld her complaint of wrongful dismissal, the Tribunal turned to her complaint of sex discrimination, which it also upheld. It then said this:
"…we make the declaration that the comments of Mr Martin constituted sex discrimination and the respondent does not come within the statutory defence …. Again, we do not make an award of compensation. It is clear that Miss Loomes accepted that the issues of sexual harassment had been dealt with and her e-mails confirm this, and had she not had the altercation with Mr Preece, concerning the matter, she would have remained in employment. Her dismissal was because her partner had written a letter to Mr Preece, the relevant manager, setting out information obtained by him, but we do not consider that amounts to sex discrimination in respect of the dismissal. No award of compensation is made."
[11]At first sight, this is a surprising decision because the Tribunal, in regarding the harassment as trivial, could have taken the view that the Applicant had failed to prove a detriment for the purposes of constituting the completed statutory tort of sex discrimination, within section 6(2)(b) of the Sex Discrimination Act 1975 . Nonetheless, the Tribunal did find the behaviour of the male employees constituted sex discrimination and upheld the Applicants' claims.[12]It then turned to compensation. Injury to feelings is a head of compensation which is specifically cited in sections 66(4) as follows:
"For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head."
Thus a Tribunal will, conventionally, look at economic loss, and non-economic loss. The decision to award anything for injury feeling is a matter within the Tribunal's decision making power under its duty to consider what is just and equitable, see section 65(1).[13]In this case the Tribunal decided that in the light of the finding that the harassment was trivial, no award would be made. It is to be noted that the guidance given in(1) Armitage(2) Marsden and(3) HM Prison Service -v-Johnson [1997] IRLR 162 includes the following:
"(1) Awards for injuries to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation the tortfeasor's conduct should not be allowed to inflate the award. (2) Awards should not be too low, as that would diminish respect for the policy of anti discrimination legislation. Society has condemned discrimination, and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use Lord Bingham's phrase, be seen as the way to untaxed riches. (3) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award; rather to the whole range of such awards (4) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. (5) Finally, tribunals should bear in mind Lord Bingham's reference in [ John v MGN [1996] 3 WLR 593] to the need for public respect for the level of awards made."
[14]An award for injury to feelings does not automatically flow from a finding of unlawful discrimination as the authors of Discrimination Law Handbook Palmer Gill Monaghan Moon & Stacey LAG 2002 point out at 33.24:
"Injury to feelings like any other loss and damage must be proved"
Generally speaking, if an award is given for injury to feelings, there appears to be a bottom level - see Deane -v- Ealing LBC [1993] IRLR 209 in which £500 was held to be at the bottom.[15]The question is: was it perverse for the Employment Tribunal, in the exercise of its discretion, to consider that it was not just and equitable for the Applicants to receive compensation. In our judgment, that is a matter for the Tribunal itself and the grounds of appeal do not satisfy the test involved in overturning a decision on the ground of perversity set out in Stewart v Cleveland Guest [1994] IRLR 440 EAT Mummery P.[16]The Tribunal has given clear reasons why it considered the affront to the Applicants to be trivial, and it is to be noted that the Respondent took certain steps to rectify the conduct, for example apologies, and at least Miss Loomes decided that a line could be drawn under the conduct. The Tribunal has also given the recommendation to the Respondent as to what it must do to comply with an equal opportunities policy. The Applicants have the satisfaction of findings in their favour on sex discrimination.[17]The Tribunal, no doubt, considered all of those matters when deciding how to exercise its discretion. We cannot fault its discretion, although all members of this Appeal Tribunal, constituted with a female majority, were surprised at the Decisions. They are not, however, so surprising that it requires us to say "it must be wrong in law" and this appeal is dismissed.