Appeal No.	EAT/1130/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 December 1998

Before
HIS HONOUR JUDGE D PUGSLEY
MS B SWITZER
MRS R A VICKERS

KINGSTONIAN FOOTBALL CLUB LTD	APPELLANTS

MISS J CUMMINS	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MRS G FAMA
(Of Counsel)
Messrs Beller & Co
Solicitors
43 Portland Place
London W1N 3AG	

	JUDGE D PUGSLEY:	We wish, right at the outset, to say that practitioners should be aware that skeleton arguments should be filed 14 days prior to the hearing.   It is totally unacceptable that we should be in the position that we are in this case, where the skeleton argument has not been filed but faxed through the night before.   We have a hard working and loyal staff that cannot be expected, with the volume of work this Tribunal has, to deal with last minute skeleton arguments submitted after the time.

	The Tribunal in London South made an order that the Respondent had been sexually discriminated in the meaning of section 1 and section 4.   They ordered the Applicant to receive the sum of damages for injury to feelings the sum of £3,500;  and compensation to the sum of £7,184.24.   

	We deal first with the question of injury to feelings.   It is contended that the sum is excessive and we have been referred to the case of Ministry of Defence v Sullivan [1994]ICR 193, where the Tribunal considered an award of £700 was appropriate to compensate the Applicant for injury to feelings resulting from the dismissal.   That is a case concerning an Applicant who had entered the Royal Navy as a dental hygienist;  she became pregnant, which was unplanned.   At that time it was well known by service women that if they became pregnant their service careers would have to end.   We cannot see that has any matter that can assist us in the totally different position which arises in this case which is, on the findings of the Tribunal:  this Applicant was subject to unsolicited and unwanted sexual harassment which were set out in the decision.   There is then a finding, at para 29, that she was dismissed because she had made a complaint about a protected act.   We have to say we cannot see that the decision as to the loss of feelings for being dismissed, in the circumstances in which Miss Sullivan was, of any assistance at all.   

	No other relevant case law has been cited to us.   We do not consider that there is any basis at all, in the light of the findings made by the Tribunal, for saying that the sum of £3,500 for injury to feelings is inappropriate.   It may be that it is at the upper end.   We do not think it is wrong in principle and in our view no arguable point of law can be sustained on that issue.

	We come now to the claim in respect to the financial compensation that arises out of the fact the Applicant was dismissed.   The Tribunal dealt with this matter in para 33 onwards.   In para 33 the Tribunal states this:

“We came to the conclusion that is was perfectly understandable in view of the actual reasons and the circumstances of her dismissal that for a period of time she should indeed feel a loss of confidence and uncertainty as to whether she wished to revert to employment within an office environment and that it was also reasonable and understandable for her to decide to go back to a more freelance type of employment with her specialist skill as an “electrolysist”.
34.  The Applicant’s claim in respect of compensation/remedy falls into two parts.   First of all there is a question of earnings and the Applicant was cross-examined very conscientiously by Respondent’s counsel as to the efforts she has made.   An added complication, quite apart from the problem flowing from the manner of her dismissal was the problems that she had made lengthy and difficult arrangements for childcare, and a more lucrative and fuller amount of work in electrolysis would mean either going to the West End and/or working a full week and/or in particular working Saturdays.   We came to the conclusion on the evidence that thus far to date the Applicant has reasonably mitigated her loss.
35.  We should record also that we took into account the point most forcefully made on the Respondents behalf that the Applicant did not have a secure future at the Club.   Whilst working there were one or two question marks about the Applicants time-keeping and matters of that sort, these are just the sort of things which we believe could easily have been resolved by a responsible and fair employer with counselling and/or [if] absolutely necessary a warning or something of that kind.   We cannot believe with the Applicant’s experience and indeed, her commitment with her child she would not readily have reacted to that kind of pressure to keep a job which, until she had difficulties she was very happy with.   So we find that, were it not for the problems we have encountered in this case the Applicant would have remained in employment.”

	It seems to us that these are pre-eminently matters of fact and we do not in any way feel arguable grounds exist for challenging those findings of fact.

	There is however one area - and one area alone - where we consider that the arguments advanced by Mrs Fama have, in fact, raised some arguable issue.   We do not think, as we have indicated, the Tribunal can in any way be criticised for awarding the Applicant five weeks of her employment pay, which they say came to £1,153.84.   Nor do we think there can be any criticism of the Tribunal as being in error of law that they gave a further 40 weeks to find alternative employment.   That is pre-eminently a matter for the Tribunal, using their local knowledge and indeed, the Tribunal made the very favourable finding for the Respondent employer, that they thought that within a short period of time she would be back on par with her earlier earnings and there is no payment for future loss.   The only area where we think there is an arguable issue is that the Tribunal seem to have adopted a fairly rough and ready method - it is said - in that they have attributed £80 as her earnings and given, for those 40 weeks, a total of £150.76 net loss, which at 40 weeks comes to a sum of £6,030.40.

	As to that matter, we consider an arguable issue is raised as to whether a Tribunal can impute earnings, where a person is self-employed, not without being rather more precise in setting out the basis of its award.

	Tribunals have to deal in rough and ready figures.   They cannot - unfortunately for them - give details on matters that are not there.   But we are concerned as to the imputation of the figure at quite that level of £80 for a period of 40 weeks in the absence of evidence as to it.   Therefore, as far as that is concerned, we make an order for Chairman’s Notes, limited solely to the question of the evidence of her earnings of £80 for the 40 week period.   That is the only arguable matter:  whether a Tribunal is entitled to such a broad brush approach.   All other matters, in our view, our not arguable.   

	Time estimate:  two hours.   There will be a requirement that you file skeleton arguments to that issue.   The time limits are there to be complied with.