Appeal No. UKEAT/0307/03/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 November 2003

Before
HIS HONOUR JUDGE PETER CLARK
MR J R RIVERS CBE
MR G H WRIGHT MBE

CX ACCESS SYSTEMS LTD	APPELLANT

MISS M HAMPTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ROBERT CATER
(Representative)
Peninsula Business Services Ltd
Riverside
New Bailey Street
Manchester M3 5PB	
For the Respondent	MR DANIEL BARNETT
(of Counsel)
Instructed by:
Messrs Stone King Solicitors
13 Queen Square
Bath BA1 2HJ	

HIS HONOUR JUDGE PETER CLARK

1	This is an employer’s appeal against the decision of the Bristol Employment Tribunal promulgated with Extended Reasons on 30 July 2002 upholding the Applicant, Miss Hampton’s complaint of unlawful sex discrimination and their award of compensation totalling £8,818.75.  We shall refer to the parties, Miss Hampton and CX Access Systems Ltd respectively as Applicant and Respondent in this judgment.

2	The facts briefly were that the Applicant was employed by the Respondent as an office administrator from February 2001 until her resignation on 16 November that year.  She was then the only female employee, save for a cleaner, who did her work when the offices were closed.  The Tribunal found, accepting evidence called on behalf of the Applicant and rejecting that of the Respondent’s witnesses, that during her employment she was subjected to a course of treatment amounting to sexual harassment and therefore unlawful sex discrimination.  Particular incidents are chronicled at paragraph 9 of the Tribunal’s reasons.

3	In assessing compensation for that statutory tort the Tribunal found that following her resignation the Applicant obtained living accommodation in a care home run by her sister, Mrs Thomas.  They concluded that bearing in mind the benefits which she received in return for her unpaid work at the home the Applicant suffered no loss of earnings.

4	They then turned to the issue of compensation for injury to feelings.  Based on their earlier findings as to the course of treatment metered out to the Applicant and the effect that it had upon her, the Tribunal made an award of £8,500 plus interest under this head of claim.  There were no other awards of compensation.

5	Against the Tribunal’s decision this appeal was brought by a notice dated 4 September 2002.  On 15 May 2003 Burton P directed on paper that the appeal proceed to this full hearing.  

6	On 29 May Mr Cater on behalf of the Respondent made an interlocutory application to adduce further evidence before the EAT.  That application came on for hearing before this division today and, having listened to submissions from both Mr Cater and Mr Barnett, we dismiss the application for the reasons given in our interlocutory ruling.

7	Turning to the original grounds of appeal, they were as follows:

(1)	The Employment Tribunal ought not to have concluded that the Applicant’s witnesses were to be preferred to those of the Respondent.  We were unable to discern any basis in law for so finding on appeal.

(2)	As a separate point it was submitted by Mr Cater that the Tribunal failed to give adequate reasons for preferring the Applicant’s witnesses to those of the Respondent.  We disagree.  This was a classic conflict of evidence case.  On one view, expressed by Arden LJ in Tran v Greenwich Vietnam Community [2002] IRLR 735 paragraph 40, where the issue is simply one of credibility of witnesses and the Tribunal prefer one set of witnesses to the other, the Tribunal’s conclusions may be briefly expressed.  However, in this case the Tribunal went to commendable lengths, in our judgment, to explain why they preferred evidence led on behalf of the Applicant to that of the Respondent.  Paragraphs 5 to 8 of their Extended Reasons speak for themselves.

(3)	Finally, it is submitted that the award of £8,500 compensation for injury to feelings was manifestly excessive.  Again we disagree.
8	We bear in mind the guidance of Mummery LJ in Vento v Chief Constable of West Yorkshire Police (No. 2) [2002] IRLR 102, paragraph 65.  His Lordship broadly divided this head of loss into three bands.  The upper band, normally £15-25,000 concerns the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race.  The middle band, £5-15,000 applies to serious cases not in the top band.

9	We have no doubt that this case falls within the middle band and Mr Cater does not argue otherwise.  In our judgment it cannot be said that this award, falling as it does below the centre point of Mummery LJ’s middle band, is a wholly erroneous estimate of the loss suffered under this head by this Applicant, bearing in mind the Tribunal’s findings of fact.

10	Nor is our view affected by Mr Cater’s further point that the medical evidence before the Tribunal, consisting of a short letter from the Applicant’s general practitioner dated 10 June 2002, was inadequate.  There was no separate award in this case for psychiatric injury for which medical evidence may or may not be required.  Mr Barnett tells us that another division of the EAT is shortly to resolve that issue.  What is quite clear to us is that an award for injury to feelings is not dependent upon medical evidence.

11	For these reasons we shall dismiss this appeal.