AA Solicitors Ltd (t/a AA Solicitors) & Anor v Majid (Sex Discrimination: Injury to feelings) [2016] UKEAT 0217_15_2306

EAT
AA Solicitors Ltd (t/a AA Solicitors) & Anor v Majid (Sex Discrimination: Injury to feelings)
[2016] UKEAT 0217_15_2306 · 2016-06-23
[1]This is an appeal against an award of £14,000 for injury to feelings made by an Employment Tribunal sitting at Manchester in a sex discrimination case. The Tribunal comprised Employment Judge Ross sitting with Mrs Garcia and Mr Dodd, and the award for injury to feelings was set out as part of the decision of the Tribunal given in a Decision signed on 1 July 2014 and sent to the parties on 4 July 2014, following a hearing a month earlier.[2]The Appellants in this appeal were the Respondents below and, in the usual way, we shall refer to them as “the Respondents”; and to the Respondent in this appeal as “the Claimant”, which is what she was in the proceedings below. The Respondents appeal by leave of the then President, Langstaff J, who granted that leave, as he said, without much enthusiasm.[3]The Claimant, Miss Majid, brought her claim for sex discrimination arising from her brief time as an employee with the First Respondent law firm, the principal of which was and is the Second Respondent, Mr Ali. The background was, briefly, that the Claimant was a legal practice course student and aspiring lawyer; and in early 2013 she sought work from the First Respondent, a firm of solicitors in Bolton.[4]She met the Second Respondent on 24 April 2013 at the offices of the First Respondent and, in brief, thereafter began working for the firm until the First Respondent purported to make her redundant in or around late May 2013, about six weeks later. The Claimant alleged in her claim that the Second Respondent had committed around 40 or more acts of sexual harassment against her, ranging from asking her to go out to the cinema, talking about installing a bed in one of the rooms at the office, attempting to hug her, touching her arms, squeezing and rubbing her hands when shaking hands and making her feel uncomfortable by these types of act.[5]The matter came before the Employment Tribunal, and it must have been in or around early 2014 when it gave its Judgment on liability. Unusually, we have not been asked to look at that Judgment. It is clear from the Remedy Judgment that it must be a lengthy and quite detailed document, running to well over 180 paragraphs; and it must be inferred that it contains the detailed findings of fact relevant to liability, which went in favour of the Claimant on not all but quite a large number of her allegations.[6]The Liability Judgment, unusually, was omitted from the bundle placed before us by the Respondents for the purposes of this appeal, and Mr Willmer, counsel for the Respondents, does not have it and has not sought to put it before us. The proceedings had a somewhat lengthy procedural history after the Remedy Judgment was given, and it is unnecessary to go through all of that history. There was an application for reconsideration of the Judgment, to which we need not refer, and the matter comes before us by leave of the then President.[7]In the Remedy Judgment the Tribunal decided:(1) to recommend that the Second Respondent attend an equal opportunities training for solicitors course including sexual harassment; and(2) to award against both Respondents, jointly and severally, compensation for loss of earnings in the sum of £2,111.40 plus interest of £9.68, compensation for injury to feelings of £14,000 and aggravated damages of £4,000, plus interest of £100.34.[8]As regards the award for financial loss, all we need say is that the Tribunal declared itself unsatisfied that Polkey vAE Dayton Services Ltd [1987] IRLR 503 HL principles were applicable but stated that, if it were wrong about that and those principles were applicable, they would not lead to any reduction on the facts because, as the Tribunal found, they were not satisfied that if a fair procedure had been followed the Claimant would not have been selected for redundancy.[9]That is because the Tribunal was of the view, in effect, that the selection of the Claimant for redundancy was not on genuine grounds. There were no contemporaneous concerns expressed about the quality of her work or performance, and there was another candidate for redundancy who had yet to commence the legal practice course and who had less experience than did the Claimant.[10]The award for injury to feelings proceeded from consideration of Prison Service v Johnson [1997] ICR 275 EAT, Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 CA, Da’Bell v NSPCC [2010] IRLR 19 EAT and Simmons v Castle [2012] EWCA Civ 1039 . The Tribunal directed itself in accordance with those authorities, saying that it kept in mind its findings in the Liability Judgment.[11]The findings were that the Claimant was a young woman at the start of her professional career and the Second Respondent was an older man in position of power and authority, being the only solicitor in his own firm and therefore exercising a high degree of control and responsibility over employees in the workplace. The Tribunal noted that there was evidence of visits to the Claimant’s GP resulting from stress and anxiety because of the harassment and exacerbation of an irritable bowel syndrome condition from which she suffered.[12]The Tribunal concluded that the case fell within the middle Vento band, noted that it had since been uplifted by reason of inflation to a range (including a 10 per cent uplift on the basis of Simmons ) from £6,600, to £19,800. The Tribunal selected the figure of £14,000 and stated that in reaching that figure it accepted the Claimant’s evidence that “she always politely rejected the advances made by [the Second Respondent]” (paragraph 20), and they took into account the other circumstances, including that the duration of the Claimant’s unemployment after losing her job was relatively short.[13]The Tribunal went on to award a further £4,000 as aggravated damages by reason of high handed, malicious, insulting or oppressive behaviour, and we need not say more about that aspect of the award, since no complaint is made in respect of it. Finally, the Tribunal rejected arguments that the award should be reduced by reason of contributory negligence or a failure to bring a grievance pursuant to the relevant ACAS Code.[14]That, then, was the decision, part of which is challenged in this appeal. Mr Willmer, who presented the case attractively and economically for the Respondents, submitted in a skeleton argument and oral submissions that the award for injury to feelings of £14,000 was manifestly excessive. He submitted that the Second Respondent’s conduct was, to quote from his skeleton argument:
“… of its type, no more than modestly obnoxious and might properly be characterised as gauche and insinuating rather than aggressive, and was of brief duration …”
[15]He submitted that the authorities recognised the need to maintain public confidence in awards of this kind to ensure that they are purely compensatory and could not reasonably be characterised as “untaxed riches”. He referred in his skeleton and oral submissions to the Judicial College guidelines for awards in personal injury cases where awards are made in respect of psychiatric damage.[16]He submitted that what should be two branches of the same tree had become decoupled from one another. The Judicial College guidelines for awards of this type in tort cases, he submitted, produces quite a stark comparison. While he was not submitting that the guidelines derived from Vento are wrong or misconceived, he said that a reasonable person in the street in a case such as this would consider the award of £14,000 on the facts here excessive, when set against awards founded in the personal injury cases.[17]He said that examples of awards of about double the amount here can be found in the Judicial College guidelines; in cases, said Mr Willmer, of conduct leading to much more serious harm, in particular psychiatric harm; and he pointed out that there was no post-traumatic stress disorder in this case. Although there was limited medical evidence, as he accepted, of treatment for depression and exacerbation of irritable bowel syndrome, he said that did not justify such a high award.[18]The Claimant did not attend the hearing, but through her solicitors relied on her Respondent’s Answer to this appeal. She submitted that this was a classic example of a lengthy campaign of discriminatory harassment on sexual grounds that exploited her vulnerability as a young woman early in her career who had been subjected to conduct causing distress and upset leading to treatment for depression. She submitted that the case was one of abuse of authority and that the award was not at all out of line with other awards in other cases among the reported authorities, citing as an example Miles v Gilbank [2006] EWCA Civ 543 , in which a higher award was made.[19]Turning briefly to the law, the well known guidance initially given by the Court of Appeal in the Vento case (see per Mummery LJ, giving the Judgment of the Court, sitting with Ward and Jonathan Parker LJJ, at paragraphs 65 to 68) included the point made at paragraph 66 that there is:
“66. … within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.”
[20]In Da’Bell , HHJ McMullen QC pointed out that the three bands established in Vento should be uplifted to take account of inflation. It has since been decided in this Appeal Tribunal that the 10 per cent uplift for personal injury damages ordained by the Court of Appeal in Simmons applies to awards for injuries to feelings in this jurisdiction (see the decision of Langstaff J, then President, in Beckford v London Borough of Southwark UKEAT/0210/14.[21]That was in line with the earlier decision of Simler J, now President, in Sash Window Workshop Ltd v King UKEAT/0057/14 (c.f. the contrary decision of HHJ Serota QC in De Souza v Vinci Construction UK Ltd [2015] ICR 1034 EAT, in which an appeal is pending) so that (subject to the pending appeal) the weight of authority in this Appeal Tribunal is that the 10 per cent uplift does apply in this jurisdiction, and Mr Willmer indeed did not contend otherwise.[22]The middle band is therefore now in a range as quoted at paragraph 19 in the Tribunal’s Remedy Judgment of £6,600 at the lower end and £19,800 at the top end. It seems to us that, while consistency is highly desirable, in future cases there is no need for Employment Tribunals to await guidance from this Appeal Tribunal or any higher court, so far as adjusting the bands to take account of inflation is concerned.[23]If there is cogent evidence before an Employment Tribunal of the rate of change in the value of money (which could, in principle go down as well as up), then a reasonable Tribunal acting on that evidence would be entitled without error of law to act on that evidence by adjusting the band ranges and any award for injury to feelings accordingly, as happens in personal injury cases, where evidence of change in the value of money is regularly accepted by annual uprating of the various awards set out in the Judicial College guidelines.[24]Turning to the award made in this case, we remind ourselves of what HHJ McMullen QC said in the Da’Bell case at paragraph 46:
“46. We indicated at the outset that appeals on the basis of inadequate or excessive compensation were more likely to succeed if the wrong band were chosen. Mr Duggan conceded the claim was worth £6,000-£8,000. That is within the middle band. In our judgment disputes about the placement within a band of an award are likely to be about fact and impression. They are more likely to raise questions of law if they are about placement in the wrong band or at the extremes. …”
[25]We respectfully agree that it will be relatively rare for appeals to succeed in a case where it is said that the Employment Tribunal selected the wrong point within a band rather than the wrong band. In this case, Mr Willmer accepted that an award at the bottom end of the band would have been unimpeachable. He said, however, that £14,000, although within the band, was so high as to be manifestly excessive. We asked him at what point the line between a permissible and impermissible award would be crossed, to which he responded that if the award had been at £10,000 that would have been the upper limit of what was permissible.[26]We turn to consider the application of those principles to the award that was made in this case. The detailed facts constituting the acts of harassment - as found by the Tribunal in its main Liability Judgment - were placed before us, somewhat unusually, in the form of a witness statement of the Claimant. We accepted Mr Willmer’s invitation to take the detailed facts, as found by the Tribunal, from that statement which, he accepted, represented what the Tribunal had found.[27]In that statement, which we will not go through in detail, the Claimant set out at length and in chronological order her experience of working for the First Respondent under the Second Respondent’s direction. She began her account with the initial job interview, during which he asked her what her star sign was and, probably in a joking manner, proposed marriage although he was already married. She stated that she laughed this off.[28]He then commented on her figure, saying she was very stocky, which offended her, and he touched her arms, saying she had muscles. The account continues in some detail, setting out the events that we have summarised earlier in this Judgment, such as inviting her to go to the cinema, mentioning putting a bed in one of the office rooms, and so forth.[29]We do not accept from that description of the facts Mr Willmer’s submission that this was a case merely of persistent unwanted attentions but without serious physical contact, that was no worse than gauche and insinuating. Far more than that, in our judgment, the Second Respondent’s conduct, as found by the Tribunal, violated the Claimant’s dignity as a worker. He did not treat her as a worker; from the first meeting in the job interview he treated her in a demeaning and disrespectful manner as a woman evidently to be present in the office for his pleasure and gratification rather than to work and develop her skills as a lawyer.[30]Unfortunately, when she politely rejected his advances, he turned nasty, as appears from later passages in her account. She lost her job as a result. Again unfortunately, this is not uncommon in cases of this kind. Standing back, we consider that the reasonable person in the street invoked by Mr Willmer would, contrary to his submission, regard the law as deficient if it did not mark such conduct with awards that recognise how humiliating it is for a worker to lose her job because she is not willing to play a sexually charged role allotted to her by her employer.[31]She was, it is true, compensated financially for her loss of earnings, but the award of compensation for injury to her feelings included, properly, an element for the loss of her job. The feelings of hurt and humiliation at losing a job in such demeaning circumstances should not be downplayed. This was a young lawyer’s first job in the law. It is true also that she was fortunately not out of work for long, but it was a very bad start to her career, which occurred because of the Second Respondent’s discriminatory conduct.[32]We do recognise that another Tribunal might well have made a lower award within the middle Vento band and it would not have been wrong to have done so, but this was a case of an award within the band accepted as the right one. It was not suggested that this is a case where the Tribunal got the wrong band, and the bottom end of this band would have been acceptable to the Respondents. The award was not even at the top of the band. It was above the middle but not at the upper limit. So, whilst it could be characterised as perhaps on the high side, it is not, in our judgment, manifestly excessive so as to justify this Appeal Tribunal interfering.[33]We would add that the Tribunal, to state the obvious, unlike we, had the considerable advantage of having heard the evidence during the hearing that preceded the Liability Judgment, itself obviously a detailed document, although we have not seen it. The Tribunal was very well placed to make its assessment and fine-tune its assessment of what the right level of award was. Furthermore, the Remedy Judgment is a careful and well reasoned document, to which it is clear much thought has been devoted, and we pay tribute to the quality of that Judgment.[34]We do not think that the appeal is assisted by the analogy drawn with personal injury awards applying the Judicial College guidelines. The class of cases relied upon by Mr Willmer tend to focus on psychiatric injury supported by medical evidence. Injury to feelings may or may not be accompanied by psychiatric injury forming part of the injury. As it happens, in the present case there was an element of psychiatric injury supported by medical evidence, but awards for injury to feelings need not include that element.[35]This means that the analogy with personal injury awards for psychiatric injury is imperfect. In this jurisdiction, the governing authorities are Vento and the subsequent cases in which it has been updated and developed. The Judicial College guidelines are not out of line with Vento , but in any event the Vento guidelines represent bespoke guidance tailored to this jurisdiction and this particular type of statutory tort, which is normally, as in this case, committed by the doing of deliberate rather than merely negligent acts.[36]In conclusion, we shall for those reasons dismiss the appeal. We are grateful to Mr Willmer for his economical and erudite submissions.