Appeal No.	 EAT/0233/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 December 2001

Before
HIS HONOUR JUDGE D PUGSLEY
LORD DAVIES OF COITY CBE
MR B M WARMAN

MRS B L DRISKEL	APPELLANT

(1) PENINSULA BUSINESS SERVICES LTD (2) MR M J HUSS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING  EX PARTE

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT

HIS HONOUR JUDGE D PUGSLEY

1	This is an application from Mrs Driskel who seeks leave to appeal a decision of the Employment Tribunal in which she claims that although the Employment Appeal Tribunal found that she had been the victim of sex discrimination of a very high order the amount of injury to feelings was very low.  Mrs Driskel has been unable to attend and we have relied on her skeleton argument.

2	In her long grounds of appeal she sets out her reasons which she says means that the Tribunal erred in law imposing an order for £2,500 for injury to feelings.  The gist of her submission is that the Chairman and Tribunal have approached the case by minimising the gravity of the issue.  By their award for injury to feelings it is claimed that the Tribunal have trivialised the situation.  She refers to the well known case of Alexander v The Home Office [1988] IRLR 190 CA that said such awards should not be minimal.  She cites other points in argument concerning the refusal of the Tribunal to make a larger award and their failure to award aggravated damages.  Much of the grounds of appeal is an attempt to reargue the case on issues of fact

3	We have looked at this decision individually and we have looked at it collectively.  We are bound to say that awards vary, of course, based on the particular circumstances in a particular case.  We do believe that the award for injury to feelings is one that must be very heavily dependent on the particular facts of the particular case, and only if a Tribunal has obviously erred should we intervene.  Where the parties have been before a Tribunal and the Tribunal has made a bona fide assessment it is only if there is a fundamental issue of principle that we should disturb the award.  The total award in this case with interest and for loss of salary was an award of £3,798.66 against the First Respondent and £668.00 against the Second Respondent.

4	This case has to be seen in its context.  The Applicant alleged that she had been the subject of sexual harassment and sexual discrimination.  The case was heard over some ten working days and all the complaints were rejected.  The Appellant appealed to the Employment Appeal Tribunal and by a decision of 17 February 2000 her appeal was allowed in respect of sex discrimination but here appeal in respect of unfair dismissal and sexual victimisation was dismissed.  In allowing her appeal on the grounds of sex discrimination in terms the judgment given by Mr Justice Holland found that the incident of 10 July 1996 was an act of sexual discrimination.  The Employment Tribunal had made a finding at paragraph 12 of their decision that prior to a job interview Mr Huss had made a remark to the Applicant that she had better attend the interview in a short skirt and see through blouse, showing plenty of cleavage, and make an attempt (or possibly a vain attempt) to persuade him to give her the job.  Although the Tribunal accepted this remark was made and was tasteless they did not consider it was an act of sexual discrimination as it was made flippantly and not meant to be taken seriously.  The Employment Appeal Tribunal substituted a finding of sexual discrimination and pointed out prima facie that it amounted to sexual discrimination of a high order as the Applicant was in the unenviable position of having to seek promotion by way of one to one interview with a man for whom she had antipathy.  It has to be observed, as we noted by Mr Justice Lindsay in giving judgment on an issue concerning reporting restrictions in this case, that the incident of 10 July did not involve any contact at all as opposed to what he called "verbal sexual discrimination”.

5	The general thrust of the Appellant’s complaint is that the Tribunal compounded the error that they made in their original adjudication and that they trivialised and undervalued the injury to feelings she had received.  We have to say that we consider that the Tribunal made a bona fide assessment of the issues.  The Tribunal noted the words of Holland J that the incident of 10 July prima facie amounted to discrimination of a high order.  We are bound to say that we have considered the arguments put by the Appellant in the documents before us and have looked at her contentions in the light of that decision.  We cannot find any error of law.  We consider the Tribunal were justified in reaching the conclusions to which they came and they considered the arguments which were put before them.

6	In paragraph 5 the Tribunal made it very clear that they had considered a range of awards.  A range of figures were put forward by the Applicant’s representative.  The Tribunal made a very specific finding of fact on the evidence before it as to the extent to which the Applicant’s pecuniary loss was caused by any matter for which the Respondents had culpability.  They therefore, in the final analysis, gave their reason for reaching their conclusion.  We have come to the view that, looking at the matter in the round, there is nothing we can say that points to an error of law.  Some Tribunals may have awarded a different figure, some may not, but at the end of the day we think that the decision they reached was within their discretion and it would be quite wrong for us to intervene.  The appeal is therefore dismissed.