Appeal No. EAT/0702/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 July 2002

Before
HIS HONOUR JUDGE PETER CLARK
MRS M T PROSSER
MISS S M WILSON

JOSEPH LANZANTE t/a HAIR UK	APPELLANT

MISS M C JEFFERIES	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT	
For the Respondent	MS S DREW
(of Counsel)	

JUDGE PETER CLARK

1	By a decision with extended reasons promulgated on 26 February 2001 an Employment Tribunal sitting at London (South) under the Chairmanship of Mr John Warren upheld the Applicant Miss Jefferies’ complaint of unlawful sex discrimination, taking the form of sexual harassment, by her employer the Respondent, Joseph Lanzante t/a Hair UK (the Liability Decision).

2	Subsequently a Remedies Hearing took place before the same Tribunal on 22 March 2001.  By a decision promulgated with extended reasons on 3 April 2001 (the Remedies Decision) the Tribunal awarded the Appellant compensation totalling £24,125; made up as to £16,000 in respect of injury to feelings and aggravated damages, and the remainder to reflect lost earnings and a small expenses claim of £55.  The Tribunal further ordered the Respondent to pay interest and the Applicant’s costs incurred since 5 September 2000, the date of the Liability Hearing.  Against the Liability Decision there is no appeal.  The Respondent below appeals against the award of £16,000 and the costs order.  The appeal on these two matters was permitted to proceed at a Preliminary Hearing held ex parte before a division presided over by Her Honour Judge Wakefield, sitting on 25 October 2001.

Background

3	The Respondent, Mr Lanzante, ran a chain of hairdressing salons.  On 17 March 2000 he engaged the Applicant as Business Development Manager.  Her task was to look after staffing issues, with a view to raising poor morale in the business.  That employment lasted only 6 weeks.  She resigned on 28 April 2000, no longer able to tolerate what appears from the Tribunal’s reasons to have been a campaign of sexual harassment, perpetrated by the Respondent himself.  She was forced to leave her job in circumstances amounting to a dismissal for the purposes of section 6(2)(b) of the Sex Discrimination Act 1975, as defined in section 82(1A)(b).

4	The nature of the harassment consisted of frequent references to lesbian and heterosexual sex.  The Respondent’s denials in evidence were rejected by the Tribunal.  There was some unwanted physical contact.  The details are fully set out in the Liability Decision reasons.

5	As to remedy, the Tribunal found that, as a result of her experiences in the employment, the Applicant had lost confidence and was more cautious when meeting people.  They described it as a bad case.  The Applicant had indicated to the Respondent that she found his conduct unacceptable but he persisted.  There were aggravating features; the Respondent was the boss and his attitude was that, as such, he would behave as he liked.

6	The Tribunal took into account also his conduct at the Liability hearing.  For example, when certain allegations were put to him at the Tribunal, his answer was:

“I think it is wishful thinking.  I don’t know what is in her head.  I would not want to speculate.  I can assure you I would not want her.”

When it was suggested to him that on one occasion he had taken the Applicant’s hand, licked it on the back and looked at her in a lewd way, he denied it saying:

“I could not think of anything worse.”

7	In these circumstances, the Tribunal awarded compensation of £16,000 to include the aggravated element.  As to costs, the Liability Hearing took place on 5 September 2000.  The Tribunal reserved their decision meeting on 31 January to deliberate.  Their reserved decision with extended reasons was promulgated on 26 February 2001.  It contains certain indications as to remedy, designed to assist the parties in reaching an agreement.  No agreement was reached; however, two days before the Remedies Hearing, held on 22 March, the Applicant’s advisers put forward an offer in settlement some £4,000 less than the eventual award.

8	The Tribunal found (remedies reasons paragraph 16) that the case ought to have been concluded in one day only.  The Respondent turned up late on the first day and had not prepared a witness statement, as his representative had asked him to do.  In these circumstances they held that he had acted unreasonably within the meaning of rule 12 of Employment Tribunal Rules of Procedure 1993, then in force, and ordered him to pay the costs incurred by the Applicant since 5 September 2000 on an indemnity basis.

9	This morning the case has been listed for the full appeal hearing.  The Respondent has attended and Ms Drew of Counsel appears on her behalf.  The Appellant is not present and is not represented.  On 11 June his then advisers, First Business Support, wrote to the Employment Appeal Tribunal saying that they were no longer acting for Mr Lanzante.  They wrote in similar terms to the Applicant’s solicitor on 21 June.

10	Attempts have been made, both by those solicitors and the EAT to contact Mr Lanzante, but he has proved elusive.  In these circumstances we have proceeded to hear the appeal, bearing in mind the grounds on which the appeal was allowed to proceed at the Preliminary Hearing, the Notice of Appeal and the written and oral submissions of Ms Drew on behalf of the Applicant.
11	Two points arise for determination.  First, the quantum of the award for injury to feelings and aggravated damages.  Ms Drew has reminded us of the judgment which I gave in ICTS (UK) v Tchoula [2000] IRLR 643, a case which was referred to the Tribunal below.  In the course of that judgment I sought to identify a range of awards in an endeavour to assist Employment Tribunals in the future, in particular the higher and lower category of case.  We are persuaded by Ms Drew that the present case falls within the higher category and in these circumstances the overall award of £16,000 falls within the permissible range.

12	We also bear in mind the case of London Borough of Hackney v Tiyamiyu, which is referred to at paragraph 30 of the judgment in Tchoula.  In that case an Employment Tribunal sitting in 1996 awarded the Applicant £13,500 for injury to feelings in circumstances where he had been dismissed, itself amounting to unlawful discrimination on grounds of his race.

13	On appeal the Employment Appeal Tribunal reduced the award to £7,500 but on further appeal to the Court of Appeal that court reinstated the Employment Tribunal award holding that, although it was generous the EAT, not having heard the witnesses, ought not to have interfered with the Tribunal’s assessment.  We propose to follow that approach in the present case.

14	It is argued that there was no basis for including an element of aggravated damages in the overall award of £16,000.  We reject that submission.  It seems to us clear, from the way in which the Tribunal framed their reasons, particularly at paragraph 14 of the Remedies Decision, that they took into account as an aggravating feature, Mr Lanzante’s attitude at the Liability Hearing before the Tribunal, reflected in the comments to which we have earlier referred.  It seems to us that that brought the case properly within the scope of cases where an award of aggravated damages was permissible.  Looking at the matter overall, we are not persuaded that this total award of £16,000 was so excessive as to require or entitle this Appeal Tribunal to interfere with it.
15	Next, the question of costs below.  The short answer to that part of the appeal is first, as Ms Drew points out, that the Tribunal has a wide discretion to award costs under the former rule 12 of the Employment Tribunal Rules of Procedure 1993, provided that the prerequisites have been met.  In this case it is clear on the Tribunal’s findings that the Respondent had behaved unreasonably, by his own conduct, extending a one-day case into two days.  Further, the Tribunal in their liability reasons had given an indication to the parties as to the proper approach to remedy.  The Applicant, through her solicitors, had put forward a proposal for settlement, which in the event was less than that awarded by the Tribunal, but no agreement was reached.

16	In all these circumstances it seems to us that it was properly open to the Tribunal to make the costs order which it did, running from the date of the first liability hearing.  In these circumstances, having considered the two grounds on which the appeal has been permitted to proceed to this full hearing, we reject both grounds and accordingly the appeal is dismissed.

17	Having dismissed the appeal Ms Drew makes application for costs in the appeal.  It is right to say that at the Preliminary Hearing a division of the EAT permitted the matter to proceed on the basis that arguable points of law were raised.  That said, within a very short time of being served with the judgment and order at the Preliminary Hearing the solicitors for the Applicant wrote to Mr Lanzante’s then advisers, First Business Support, on 9 November 2001, offering to settle the appeal in the sum of £25,000 to reflect not simply the award of compensation by the Tribunal but also outstanding interest and the costs ordered below.  That offer was not responded to and thereafter, as we have indicated, the Respondent parted company with his advisers, took no steps to obtain alternative representation and has failed to attend without explanation today.  

18	In these circumstances, the Applicant has, in our judgment, been put to expense due to the unreasonable behaviour of the Respondent in the appeal.  Accordingly we shall order the Respondent to pay the Applicant’s costs from the date of the offer letter, 9 November 2001, which effectively covers the whole of the period in which the Applicant has been involved in the appeal and is reflected in a schedule of costs prepared by the Applicant’s solicitors.  We have considered that schedule; we consider the costs there to be reasonable and accordingly we shall order the Applicant’s costs in the appeal, in the total sum of £3,050 plus VAT.