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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Pectel Ltd v. Franklin [2003] UKEAT 0665_03_2310 (23 October 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0665_03_2310.html Cite as: [2003] UKEAT 0665_03_2310, [2003] UKEAT 665_3_2310

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APPEARANCES

 

For the Appellant	MR PETER MOONEY (Representative) Instructed by: Employment Law Advisory Services Ltd Lancaster House Old Wellington Road Eccles Manchester M30 9QG


 


HIS HONOUR JUDGE PETER CLARK

1. The Applicant, Mrs Franklin, brought her complaints of direct sex discrimination and unfair constructive dismissal against her former employer the Respondent Pectel Ltd, in the Stratford Employment Tribunal. Following a hearing held over four days, that Tribunal upheld both complaints by a decision with Extended Reasons promulgated on 18 October 2002 ("the liability decision"). At a remedies hearing held on 25 March and 18 June 2003 that same Tribunal, by a remedies decision with Extended Reasons promulgated on 4 July 2003, awarded her compensation for unfair dismissal in the sum of £4,933; £22,518 compensation for sex discrimination and interest on the latter award totalling £4,305.24. There is now before us for Preliminary Hearing the Respondent's appeal against that remedies decision.
2. The grounds of appeal are organised under the following heads:

(1) The Applicant's attempts to mitigate her loss and questions of causation and a break in the chain of causation;

(2) The Tribunal's award of £17,000 for injury to feelings in the sex discrimination complaint;

(3) The additional award of £5,000 aggravated damages in that complaint;

(4) The calculation of interest on those awards.

We shall deal with each head in turn.

Mitigation

3. The Applicant left the Respondent's employment as a Purchase Ledger Clerk on 1 March 2002, shortly before she was due to return from maternity leave on 15 April 2002.
4. On 7 May 2002 she obtained part-time work as a Shelf Stacker with Tesco. She worked for 3.75 hours at night, four days per week. Sometimes she did not return home until 2.30am. Her husband worked on days. Between them they were able to care for the new baby, their first child, born on 24 September 2001.
5. In October 2002 the Applicant again fell pregnant. She asked Tesco for lighter work. She was put on a lighter aisle but the work was still physical and she resigned from that employment on 31 December 2002. She had not resumed work by the time of the remedies hearings in March and June 2003.
6. It was argued below by Mr Mooney on behalf of the Respondent that the Applicant had failed to mitigate her loss. First, because she ought to have found a better job for which she was qualified. The Tribunal rejected that submission for the reasons given at paragraph 11 of their remedies reasons. Secondly, it was said that Tesco was under a statutory obligation to find the Applicant suitable work whilst pregnant, otherwise to pay her full rate on suspension. That argument was considered and rejected by the Tribunal at paragraph 12 of their remedies decision reasons.
7. On this latter finding, Mr Mooney submits that there was a statutory obligation on Tesco, having carried out a proper risk assessment, to pay the Applicant if suitable light work was not made available for her; and he cites and relies on the Management of Health and Safety at Work Regulations 1999.
8. The difficulty with that interesting submission is the Tribunal's findings on the facts. At paragraph 12 (i) of the remedies reasons, having considered that submission, they were not persuaded that Tesco were in breach of their statutory duty having given the Applicant light work. Thus the question for the Tribunal was whether in resigning from her employment with Tesco in December 2002 the Applicant had failed to mitigate her loss. Or, alternatively, that there had been a break in the chain of causation.
9. We have considered their findings and reasoning, particularly at paragraph 12 (ii) and we are not persuaded on the particular facts of this case that the Tribunal erred in law in concluding that there had been no break in the Chairman of causation, nor failure on the part of the Applicant to mitigate her loss. Accordingly, we reject this first ground of appeal.
10. The second matter concerns the Tribunal's finding award for injury to feelings; that is, £17,000. Mr Mooney has sought to persuade us that that award is manifestly excessive on the particular facts of this case, particularly bearing in mind the valuable guidance given by Mummery LJ in Vento v Chief Constable of West Yorkshire Police (No. 2) [2003] IRLR 103, paragraph 65.
11. The question for us is whether, on the facts as found, this was a case which could be properly categorised as one of the most serious cases where there has been a lengthy campaign of discriminatory harassment on the ground of sex. In our view, that description is amply satisfied by the findings of fact in this case. The harassment began in June 2000 and there was then what can fairly be described as intimidating and aggressive behaviour and sexual comments on the part of Mr Warren, a senior member of the Respondent's management, between December 2000 and May 2001.
12. We are not persuaded that this appeal raises any arguable case for interfering with that award.
13. Similarly, taking the third point in the appeal quite shortly, we think that an additional award of £5,000 for aggravated damages in the circumstances of this case, as fully described by the Tribunal in both their liability and remedies reasons, is unassailable on appeal.
14. The final point concerns interest on the award for sex discrimination. We shall first deal shortly with a complaint by Mr Mooney that the interest figure ought to have been reduced to take into account the delay in the Tribunal disposing of this case. The Chairman, we think, acknowledged that the delay was undesirable in his remedies reasons. However, it seems to us that the pain is shared by both Applicant and Respondent; the Applicant being kept out of her money until such time as the award was finally made. We see no reason for interfering with the interest calculation on the ground of delay in these circumstances.
15. The final point in the appeal, and the one which we think raises an interesting and novel question of construction, concerns Regulation 6 of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. Regulation 6 provides:

6 (1) "Subject to the following paragraphs of this regulation –

(a) in the case of any sum for injury to feelings, interest shall be for the period beginning on the date of the contravention or act of discrimination complained of and ending on the day of calculation;

(b) in the case of all other sums of damages or compensation (other than any sum referred to in regulation 5) and all arrears of remuneration, interest shall be for the period beginning on the mid-point date and ending on the day of calculation."

16. The short but interesting point taken by Mr Mooney in this appeal is that whereas the award of £17,000 for injury to feelings plainly falls within paragraph 6 (1) (a), he submits that the award of £5,000 aggravated damages falls under 6 (1) (b), so that interest is at the lower rate, starts at the mid-point date rather than the first date of the contravention or act of discrimination complained of. The Tribunal awarded interest on both awards under Regulation 6 (1) (a).
17. This is a point presently free from authority and we can see that on a literal reading of Regulation 6 the submission made by Mr Mooney is at the very least arguable. Accordingly we shall allow this appeal through solely on the question as to whether or not interest on aggravated damages awards falls to be calculated under Regulation 6 (1) (b) or 6 (1) (a) of the 1996 Regulations.