Appeal No.UKEAT/0536/05/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 March 2006

Before
THE HONOURABLE MR JUSTICE BEAN
              MR P SMITH
              
              MISS S M WILSON CBE

CORUS HOTELS PLC	APPELLANT

1) MS L WOODWARD 2) MR S RUSHTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

		
	APPEARANCES

For the Appellant	MR ROBIN ASTON
(Solicitor)
Messrs Astons Solicitors
The Stables
Manor Road
Staverton
Near Daventry
	
For the First Respondent	Written submissions	
For the Second Respondent	Not resisting the appeal	

SUMMARY
Sex Discrimination – injury to feelings
Sex discrimination – refusal of job after interview tainted by discrimination – award for injury to feelings affected by Tribunal’s indignation – size of Respondent company also wrongly taken into account – award reduced from £5,000 to £4,000.

THE HONOURABLE MR JUSTICE BEAN

1.	In the autumn of 2004 Ms Woodward applied for a job with Corus Hotels plc as a receptionist.  She was interviewed by a Mr Rushton and she did not get the job.  She brought a claim of sex discrimination against Corus Hotels and Mr Rushton which came before an Employment Tribunal sitting at Hull under the Chairmanship of Mr Hildebrand on 19 and 20 May 2005.  

2.	The Tribunal held that the complaint of sex discrimination succeeded.  They ordered the first Respondent to pay to the Claimant £5,000 compensation for injury to feelings and £525 in respect of loss of earnings with awards of interest on each of them.  There is no appeal against the finding of sex discrimination nor against the award for loss of earnings, the quantum of which was never in dispute.  This appeal is against the award for injury to feelings which Mr Aston, solicitor for the Appellant who argued the case before us, as he did before the Tribunal, complains was too high.  

3.	It would be inappropriate in this judgment to set out at great length the findings of fact of the Tribunal on the liability issue.  It is sufficient to say that they demonstrated in our view that the interview was conducted in a crassly sexist manner.  The first question Mr Rushton asked was whether the Claimant had any children.  He went on in the course of it to tell her of past employees with children who had left after 6 weeks employment; later he ventured his opinion that the hourly rate of pay of £5 per hour could be a problem for the Claimant.  There were a number of references to her personal circumstances.  She had candidly stated that she was a single parent with a 12 year old son and there were frequent references to the age of the son in the course of the interview.  
4.	The Claimant’s firm impression was that Mr Rushton was seeking to dissuade her from her interest in the post.  At the conclusion of the interview he told her that she ought to be realistic about the consequences the position would have on her personal life.  He told the Claimant he would contact her and that she should not stop looking for jobs.  The Claimant received no subsequent indication that she had been unsuccessful and no indication of a reason for her lack of success until the Respondent entered a response to the Claimant’s claim.  Not surprisingly on these findings of fact the Tribunal held that liability was established.  

5.	Having dealt with the issue of liability and given their decision on it at the hearing they went on straight away, quite rightly, to deal with the question of remedy.  There was no suggestion of an adjournment and indeed, although the parties were given an opportunity to call further evidence and make further submissions, neither took advantage of that opportunity.  

6.	Ms Woodward has not been represented at the hearing before us but her solicitors have very helpfully set out a comprehensive Respondent’s Answer, in effect a Skeleton Argument, and have written in to say, which we entirely understand, that Ms Woodward, who is not legally aided, cannot afford legal representation on the appeal.  Given what is in issue they ask us to deal with their client’s case on the basis of their written submissions, which of course we shall do.  

7.	Their first point, however, is one which we think is not well founded.  They argue that since before the Tribunal the Appellant’s representative was given the opportunity to make representations on the level of award for injury to feelings and chose not to do so, the Appellant now can not use the appeal process to address the same topic.  With respect we disagree.  It is quite common in our experience for the level of award for injury to feelings not to be the subject of what might be described as a bidding war between the parties.  Sometimes the parties suggest a figure; sometimes the parties make reference to the three bands set out in the guidelines of Mummery LJ in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] ICR 318, saying which band they submit the case should be in and whether the case should be at the top or the bottom or in the middle of the band; sometimes they make no submissions on questions at all.  It cannot be the law that if the party, or the party’s representative says, (in effect) “you have heard the evidence, you are an experienced Tribunal, we leave it to you,” and the Tribunal gets the level of award wrong, the party then has no recourse to this Appeal Tribunal.

8.	The Claimant’s solicitors had in fact lodged a Schedule of Loss in which the suggested level of award for injury to feelings was £1,500 to £2,000.  Mr Aston, for the employers, therefore has his own preliminary point which is to say that the Tribunal should not have gone above the top of the band suggested by the Claimant’s solicitor.  He submits that while a band of this kind suggested by a litigant in person could not be said to create any kind of estoppel, where it comes from a solicitor it carries rather more weight.  

9.	We think that the Tribunal were obliged to, and did, have regard to the fact that that was the band of appropriate awards suggested by the Claimant’s solicitor; but they were certainly not bound by it.  They were entitled to take the view that the injury to feelings figure suggested in the Schedule was too modest.  It was a decision for them, not for the Claimant’s solicitor, and it was open to them to go above £2,000 if they saw fit.  

10.	In paragraphs 43 to 51 of their judgment they said:-
“43		In relation to injury to feelings the Claimant suggested an award in her schedule of loss in the region of £1,500.00 to £2,000.00.  The Tribunal undertook a consideration of the case of Vento No.2 as guidance on the appropriate level of award. This case identifies the lower band as between £500.00 and £5,000.00 for less serious cases when the act of discrimination is an isolated or one off occurrence. The middle band is between £5,000.00 and £15,000.00 and is reserved for serious cases which do not merit an award in the highest band. The highest band of £15,000.00 to £25,000.00 is for the most serious cases where the discrimination has been serious and has continued over a period of time. We also bore in mind in relation to the award the need for it, to be a proper recognition of the Claimant's injury to feelings. We kept in mind the dictum in the case of Alexander -v- The Home Office. Damages for injury to feelings, following discrimination being found against a Respondent, should not be minimal since this would tend to trivialise or diminish respect for the public policy to which the statute gives effect, as that case points out. On the other hand awards should be restrained since to award sums which are generally felt to be excessive would do almost as much harm to the policy and the results which it seeks to achieve as nominal awards.
44.		We took into account in making an award in this case the evidence which we heard and the circumstances revealed in the hearing. Clearly we have heard more in relation to the Respondent's approach to the appointments issue and their Equal Opportunities Policy and practice than the Claimant would have known at the time her schedule of loss was produced.
45.		We took particular account of the fact the Claimant was extremely keen to avoid reliance on state benefits and wished to return to the job market at a time of marital breakdown when she was personally vulnerable and responsible for the care of her son. We noted that the Claimant knew in the course of the interview that what she was being asked about her personal circumstances was wrong but decided like many other job applicants to endure this inappropriate conduct in the hope that she would succeed in being appointed to the post.  We also take into account the fact that the Respondent is a substantial organisation with some 60 hotels and 3,500 employees.
46.		The Respondent has brought to this Tribunal an Equal Opportunities Policy but it has provided no evidence of substance regarding steps taken to ensure that this policy is observed among the general managers of the hotels and throughout those staff responsible for appointing new employees.
47.		We noted that the Second Respondent refused to appoint the Claimant without feeling under any obligation to explain to her the rationale for his decision. We find the evidence he gave that he instructed Miss Fry to deal with this to be flimsy and insubstantial.
48.		While the refusal of a post to 1he Claimant might be termed a "one off" incident in strict terms, in a sense it is different from other "one off" incidents of discrimination because the refusal of appointment of a well qualified candidate for a post for discriminatory reasons is an action which has a permanent implication in respect of that candidate's aspirations to enter or return to the job market.
49.	In the course of the hearing we tried to convey to the Respondents' witness and representative our deep concern at this complete failure of Equal Opportunities Policy inside the Respondent's organisation. The First Respondent's approach to the litigation seemed to be motivated by a commercial decision based on the 	low level at which the injury to feelings award sought had been pitched.
50.		For all these reasons we considered that an award between £1,500.00 and £2,000.00 could never fulfil the requirements so clearly set out in the case of Alexander-v- The Home Office. An award of that level would be regarded as minimal by the First Respondent and would tend to trivialise and diminish respect for the policy behind the 1975 Act. It would allow the First Respondent to continue in its unsatisfactory recruitment practices without addressing the unfortunate circumstances of this case.
51.		The only witness we heard from the First Respondent is the individual who conducted the recruitment exercise. We were told nothing about future steps proposed or taken by the Respondents since this case came to light to ensure that the circumstances are not replicated. It was therefore our conclusion that the appropriate award in this case was at the top of the lower band, and the injury to feelings award should therefore be a sum of £5,000.00.”

11.	Mr Aston’s arguments, as he summarized them helpfully this morning, can be classified under two headings.  The first is that the Tribunal sought to punish the Respondents rather than compensate the Claimant and that they were motivated, at least in part, by indignation at the employer’s conduct.  They also wrongly took into account the size of the Respondent’s organization.  Secondly, he complains that the Tribunal did not take the general level of award in personal injury claims into account and the resulting figure of £5,000 was one which the hypothetical man or woman in the street would think was too high, particularly by reference to awards in personal injury cases.  

12.	We will deal with the second point first.  As the Court of Appeal in Vento made clear the obligation is of a Tribunal is to take into account the broad level of awards in personal injury cases as a whole rather than specific supposed comparators in awards at this level by District Judges in the County Court.  The Vento guidelines themselves have, in our view, to a large extent dealt with the problem identified in that case, namely that some awards for injury to feelings, particularly in the most serious cases (including Vento itself) were exceeding the level of general damages for personal injury awards in cases of catastrophic injuries.

13.	The guidelines given in paragraph 65 of Mummery LJ’s judgment in Vento are authoritative and binding.  What the hypothetical man or woman in the street would think of them is not a matter for Employment Tribunals or for that matter this Tribunal to speculate about.  

14.	In our view the personal injury analogy or the appeal to the views of the man in the street does not assist the Appellants in this case.  The award was pitched at the borderline between the lowest band and the middle band identified in paragraph 65 of Vento.  We will come back to whether that was the appropriate level at which to pitch it when considering Mr Aston’s other point, which is that the award included an element of punishment fuelled by indignation.  

15.	The Tribunal were entitled to take the view that, as one-off incidents go, this was a serious one.  They did have the advantage, which we have not had, of hearing Ms Woodward give evidence.  They noted in the course of the judgment that she was in a vulnerable position at the time of the interview being a single parent sorely in need of a job.  But we do consider that there are passages in the paragraphs of the decision which we have cited which give some support to Mr Aston’s argument.  

16.	Firstly, at paragraph 45 the Tribunal said that they took into account the fact that the Respondent is a substantial organization with some 60 hotels and 3,500 employees.  Many people consider that the size of the employer’s organization should be taken into account in the assessment of compensation for injury to feelings, but it is not in our view a correct approach as the law stands.

17.	Secondly, in paragraph 48, the Tribunal said that while the refusal of a post to the Claimant might be termed a “one-off incident” in strict terms, in a sense it was different from other one-off incidents of discrimination because the refusal of appointment of a well qualified candidate for a post for discriminatory reasons is an action which has a permanent implication in respect of that candidate’s aspirations to enter or return to the job market.  

18.	There does not appear to have been any evidence that this was the position in Ms Woodward’s case, as is apparent from the agreed modest quantum of the loss of earnings award.  She obtained new employment within 2 weeks of the interview.  Presumably this was a job no worse paid than the job for which she was applying with the Respondents, otherwise there would have been a continuing loss of earnings claim.  If there had been a finding of fact by the Tribunal that this Claimant had her confidence impaired in the long or medium term by her experience in the interview with Mr Rushton that would be different.  But we cannot interpret paragraph 48 in that way.

19.	In paragraph 49 the Tribunal expressed their “deep concern” at the “complete failure” of equal opportunities policy inside the Respondent’s organization.  That was a concern which was, so far as we can see, well-founded and which the Tribunal were entitled to take into account in making their finding of liability against the Respondents.  But it does not properly form part of a compensatory award for injury to feelings.  The observation in paragraph 50 that an award at the level suggested by the Claimant’s solicitor would allow the employer to continue in its unsatisfactory recruitment practices without addressing the unfortunate circumstances of this case, and the reference in paragraph 51 to no evidence having been given about future steps proposed to be taken to avoid a repetition of such circumstances also indicate that extraneous factors have been taken into account.

20.	We therefore conclude that contrary to the judgment of this Appeal Tribunal delivered by Smith J, as she then was, in HM Prison Service v Johnson [1997] ICR 275 the Tribunal appear to some extent to  have allowed their feelings of indignation at the tortfeasers’ conduct to inflate the award by way of punishment.  Nevertheless, as we have said the Tribunal were well entitled to take the view that, within the lowest band of damages identified in paragraph 65 of Vento, this was a bad case.  

21.	We therefore intend to allow the appeal Mr Aston has very sensibly suggested we should form our own view (on the findings of fact by the Tribunal in their narrative of what happened) as to what the appropriate award should be.  We consider that it should be towards though not at the top end of the lowest Vento band.  We set aside the award of £5,000 for injury to feelings and substitute an award of £4,000 for injury to feelings. 

22.	To that limited extent the appeal succeeds.  The awards for loss of earnings, and interest on loss of earnings, will remain unaffected and there will of course be the appropriate interest on the reduced award.