Munchkins Restaurant & Anor v Karmazyn & Ors UKEAT/0359/09/LA; UKEAT/0481/09/LA

Appeal against decision of the Tribunal who ruled that the respondent had sexually harassed the claimants, leading to their constructive unfaoir dismissals. Appeal on most grounds failed, although appeals in relation to compensation awarded for wages during the notice period and for aggravated damages succeeded.

Appeal No. UKEAT/0359/09/LA


At the Tribunal
On 28 January 2010




Transcript of Proceedings



For the Appellant MR ANTHONY SENDALL
(of Counsel)
Instructed by:
Messrs Speechly Bircham LLP
6 New Street Square

For the Respondent MR MARTIN WESTGATE
(of Counsel)
Instructed by:
Central London Law Centre
75 Westminster Bridge Road

HARASSMENT: Compensation
Appellate jurisdiction/reasons/Burns-Barke

Claimant waitresses claimed that for some years each had been subject to persistent unwanted sexual harassment by the boss of their restaurant, and had then resigned in response to it. An appeal against a Tribunal’s finding that the Respondents were liable for discrimination, harassment and unfair constructive dismissal was attacked on perversity grounds, as being insufficiently reasoned, and because a decision as to jurisdiction (challenged on time grounds) was not determined finally until the hearing on remedies was held.  The findings were upheld, as was the determination that each waitress should receive the same award of damages despite their respective lengths of service varying considerably.

An appeal on the ground that the Tribunal should not have awarded 100% joint and several liability against both Respondents was rejected:  Way v Crouch [2005] IRLR 603 doubted.

However, appeals were allowed against an award of money in respect of wages receivable in the notice period, and against an award of aggravated damages on a basis which was insufficiently spelt out for the parties to know precisely what was complained of and how it related to the awards made.

1. Munchkins is a restaurant near the British Museum.  For some years it has attracted, into its employment, waitresses who have come as migrant workers from Europe.  Four such waitresses were the Claimants in the present case.

2. Their employer was directed by a man called Mr Moss.  He was 73, whereas the waitresses ranged in age, at the date that they left employment, from 23 to 32.  What happened over the period of their employment at Munchkins may seem to many to be on the one hand either bizarre or on the other extreme, but it fell for consideration before the Employment Tribunal at London (Central) in 2008 who after a day’s deliberation in December that year and a further one earlier last year delivered written reasons for its conclusions on 24 March 2009.

3. By those reasons it upheld the claims of each of the waitresses that they had been unlawfully discriminated against and subject to harassment under the Sex Discrimination Act 1975 and that Munchkins Restaurant Limited, as their employer, and Mr Moss as a Second Respondent who had knowingly aided the First Respondent within the meaning of section 42 of that Act, were responsible for that discrimination.  In addition the Tribunal found that there had been unlawful discrimination against the Third Claimant, a Miss Rivas, in that she had been treated less favourably than other persons would have been treated on the ground of sexual orientation.  It has to be said that was supposed sexual orientation.  The Tribunal also concluded that the Claimants, each of whom had resigned, had been constructively dismissed and that those dismissals were unfair.

4. Following the decision on liability which we have outlined the Tribunal determined that there should be a hearing in respect of remedies.  That took place on 21 April 2009 and reasons for the resultant awards were delivered on 19 May 2009.  There have been appeals to this Tribunal against both the decision which the Tribunal made in respect of liability and aspects of its consequent decision as to remedies.

5. The case was described by the Tribunal in overview at paragraph 17 of its reasons in these terms:

“In a nutshell, the nature of the sex discrimination and harassment claims are as follows.  All the Claimants were waitresses at the Munchkins Restaurant in London WC1.  The restaurant was operated by the First Respondent, whose controlling shareholder and driving force was Mr Moss, the Second Respondent.  The Claimants say that they were made to wear skirts which were too short, that there were sex books lying around in the restaurant and sexually explicit photographs which Mr Moss often showed them and asked questions about, and that he constantly made comments of a sexual nature to them, and that he engaged or tried to engage them in discussions about sexual matters.”

6. Each said that they had resigned from employment in part in consequence of those behaviours.  The Tribunal having set that context heard more detail of much of what was said about the behaviour of Mr Moss toward the ladies over the years of their employment.  The Claimants had been employed in terms of just over one year in total in the case of Miss Rivas, to two years in the case of Miss Kuylle, three years in the case of Miss Kralova and five years in the case of Miss Karmazyn.  It summarised the findings about the sexual conversations in these terms at paragraph 98:

“We concentrate first on Mr Moss’s persistent attempts to have conversations with the Claimants and to question them about sex, and the attempts to show them photographs and catalogues of sex toys and gadgets.  There is no doubt in our mind that in this way, on the grounds of the Claimants’ sex Mr Moss engaged in unwanted conduct that had the effect of violating their dignity, and also which created an intimidating, degrading, humiliating or offensive environment for them.”

7. The Tribunal went on to consider the complaint which had been made about the shortness of skirts, paragraph 99, in which the complaint which they accepted was not so much the shortness of the skirt as the reason for which they understood it had been required by Mr Moss.  That they believed that was for sexual reasons because he liked to look at the shape of their legs, and that made them feel so uncomfortable that it had the effect of violating their dignity.  The Tribunal considered text messages which Mr Moss had shown the ladies in a sexual context containing words such as “bitch”.  It described his conduct in particular towards Miss Rivas in respect of an assertion by him that she was lesbian and his offensive questioning of her in respect of that, and concluded that in all those respects the legal requirements as to which no dispute arises on this appeal under the Sex Discrimination Act 1975, in particular sections 4A and under Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003 were made out.

8. The defence put forward at the Tribunal was that indeed there had been much sexualised talk.  However the extent to which there had been such conversation had been exaggerated.  It was strongly suggested that that talk, although it had happened, had not been unwelcome.  It had been initiated by the ladies.  So far as catalogues, toys and gadgets were concerned it was accepted that there had been such at the restaurant, brought there by Mr Moss, or for the presence of which he was responsible.  It was accepted that in a safe at the restaurant he kept pictures which might colloquially be described as dirty pictures, involving naked women.  It is plain that there was no dispute that those pictures had from time to time been seen by or shown to the waitresses.  Thus the central dispute in essence was whether or not this was conduct which had been accepted by the Claimants, and if it had been accepted or initiated by them whether the conduct had indeed been welcome rather than unwelcome as they alleged in their claim.

9. In determining these issues the Tribunal took a fairly broad approach to its description of the evidence, précising what must have been considerable detail arising both from the evidence of the four Claimants and also the evidence of Mr Moss, his general manager, Mr Puka, and one or two other witnesses.

10. The nature of the judgment was not to descend into the detail of what each individual had said on a specific occasion, but rather to deal more generally with the issues which arose.  In doing so we have little doubt that the Tribunal saved the acres of text which occasionally come before this Appeal Tribunal in discrimination claims, where a Tribunal has been scrupulous to dot every I and to cross every T.  We however emphasise that which was said in the case of Martins v Marks and Spencer [1998] IRLR 326 by Mummery LJ in these terms:

“The duty of the tribunal, having heard the evidence and argument, is to give reasons for its decision, so that the party who has lost knows why he has lost. In practical terms, that means that it should state its findings of primary fact and any inferences it draws from  those facts as clearly and concisely as possible and it should then apply the relevant statutory provisions, as interpreted by the courts, to those facts in order to arrive at a conclusion. It is not normally necessary to set out in the decision or to discuss in detail the evidence given to the tribunal.”

11. In this case there is no criticism of the Tribunal in its recitation of the applicable law.  The error of law which is alleged is that it did not sufficiently give its reasons, that in itself being an error of law; that its conclusion was perverse and that it wrongly assigned to the remedies hearing a matter which went centrally to jurisdiction; that when considering the time at which individual separate acts of discrimination took place the Tribunal only had jurisdiction over matters which fell within the relevant time limits.

12. We shall deal with the more detailed criticisms in the course of this judgment, but hope that we, for our part, will be excused for not setting out in full much of the detail which the Tribunal itself recites, for if so we should be failing in a duty which rests on an Appeal Tribunal too, which is to be as concise as the circumstances of the case properly permit.

13. The question whether the conduct of Mr Moss toward the waitresses was welcome or unwelcome was plainly the subject of evidence, cross-examination and debate before the Tribunal.  The Tribunal dealt with the issue in this way.  First, it set out the case in a nutshell as we have described.  Secondly, it set out the basic facts relating to the Claimants and the time of their employment and thirdly it discussed what it described as general harassment.  At paragraph 36 for instance it detailed the Claimants’ description of a situation in which over the whole period of their employment at the restaurant each of them put up with unwelcome and inappropriate talk about sex from Mr Moss on an almost daily basis.  It went on to say that the Tribunal had accepted that evidence.  It indicated the defence and rejected the defence view of the acceptability of the waitresses’ evidence by disagreeing specifically with Mr Moss’ claim that some of this was exaggerated.  It came to the view that the Claimants were honest in their answers and tried hard to be as accurate as possible, but it did draw specific reference to some discrepancies which had occurred during cross-examination, to some discrepancies which there were between the evidence given before the Tribunal and written evidence, making it is plain therefore that the Tribunal had very much in mind that issues of credibility would affect its overall conclusion.

14. What Mr Sendall as counsel for the employer maintains before us is that the conclusion to which the Tribunal came was a wholly impermissible one.  It was perverse.  That was, he says, because each of these Claimants had worked for a very considerable time yet they claimed to have suffered behaviour which on any view was intolerable.  They could not be expected to put up with this.  They would surely have left.  Secondly, he pointed to a feature of the evidence - that far from denying that they had themselves on occasion initiated conversation about sex, the ladies accepted that they had indeed done so.

15. The Tribunal examined at paragraph 41 why the claimants had initiated such talk:

“The reason why the Claimants would not complain directly to Mr Moss [that is, about his conduct] was that if they did so he would get angry.  If they told him that they were upset or embarrassed by what he was saying or doing, he would be amused and simply encouraged in his sex talk.  If they tried to move away from Mr Moss he would tend to follow them and persist with his questions.  So the Claimants’ usual way of tackling the situation was to make some passing comment or try to change the subject.  They did complain about the sex talk to the manager Mr Puka, who was also aware about it anyway, but he would say that nothing could be done ...”

Then it explored in paragraph 42 why two of the Claimants, Miss Karmazyn and Miss Kralova, initiated conversations about Mr Moss’ love life and described that that was the way in which they found him easier to handle, he being a person with bad temper.

16. The Tribunal observed that it had itself seen exactly that phenomenon when Mr Moss gave evidence: he is best described perhaps as someone who is volatile, and extremely so.  It went on at paragraph 45 to say:

“Miss Karmazyn and Miss Kralova were the most senior waitresses and they considered it to be a task they needed to perform to keep peace in the restaurant to calm Mr Moss in this way.”

That is, by talking to him about:

“... for example whether he had received any text messages from girlfriends, or whether he had been on recent dates.”

thus diverting him from talking about their own sex life, their boyfriends’ personal characteristics, their own preferences and the like by having him talk about his.

17. The Tribunal over paragraphs 40 to 54 described therefore why it was that in their view the waitresses had put up with a state of affairs which many others might have thought was intolerable.  It ended with this summary at paragraph 54:

“The Claimants had found an equilibrium at work which made the job acceptable.”

Why then, it might be asked, did they resign if indeed they had found that balance?  The answer is contained in the remaining two sentences of paragraph 54:

“This equilibrium was upset when Miss Guillery became ill and was no longer able to work in the restaurant.  Roughly within 3 months of that event, all Claimants had left.”

Miss Guillery was the Assistant Manager who the Tribunal found had acted as a buffer between the waitresses concerned with the claim and Mr Moss.  It noted that roughly within three months of that illness all the Claimants had left.

18. The Tribunal went on to deal with specific incidents of harassment, dealing with individual Claimants separately.  It dealt towards the end of its description of those incidents with those incidents which were not matters of conversation but involved such as the catalogues and the photographs and the showing of the phone, with sexualised references, then detailed the resignations from paragraph 84 onward. There it explained how first on 1 July 2007 Miss Kralova, who had become effectively the Assistant Manager in the absence of Miss Guillery, found the situation too much for her now that she was first in the firing line and resigned, and how then on 24 August that had been followed by Miss Karmazyn, when things came to a head for her on Friday, 24 August.

19. The description which the Tribunal gives is of an incident in which Mr Moss behaved aggressively, shouting, complaining and - although it does not use the words - in effect in a bullying and intimidatory manner.  A consequence of that, it concluded, was that Miss Kuylle resigned, having seen the anger that Mr Moss displayed towards Miss Karmazyn, So too did Miss Rivas who saw Miss Karmazyn crying, who heard Mr Moss and who felt that she should go, being too scared, it seems, to tell him to his face that she was off.

20. The Tribunal then came to assess the law and under a heading called “Considerations” summed up what it had found.  We have already quoted from paragraph 99, which is part of this. It also considered each of the legal requirements of constructive dismissal, held them satisfied and made findings on the other complaints which had been put before it.

21. The grounds of appeal before us are accepted as alleging perversity, and failures to make sufficient findings of fact.    As to perversity, both general and specific points are taken by Mr Sendall.  His general point is that it simply defies belief that any woman could put up with the situation which was described by them in the way it was to the Tribunal and a decision that that had been the case must necessarily fail.  In particular it was perverse that conversations which they had initiated should be held by the Tribunal to be unwelcome.

22. It is said by Mr Westgate that on this point we should be mindful of the approach which the Court of Appeal enjoins in the case of Yeboah v Crofton [2002] EWCA Civ 794 (see particularly paragraphs 93 and 94).  He reminds us that it is not for us to focus upon small and minor points or potential discrepancies plucked, as it were, like cherries from a field of fruit which otherwise would fall in favour of the Tribunal decision.  It is, he submits, clear that this Tribunal had considered the issues carefully and had been faced with two rival explanations of what had taken place.  There was a stark conflict of evidence as to whether the behaviour of Mr Moss had been exaggerated.  There was a conflict of evidence as to whether it had been unwanted.  We cannot say, and Mr Sendall did not say, that there was no evidence to the effect which the Tribunal found.  This is not a case of material facts having no foundation in evidence.  The Tribunal gave reasons for preferring the evidence of the waitresses to the evidence of Mr Moss.  We should conclude that that is precisely what a Tribunal in case such as this has to do.

23. In response to these submissions we have to ask whether the decision which the Tribunal reached was wholly impermissible, such that an observer might say, “My goodness, that was certainly wrong”?  We do not find it at all extraordinary that these waitresses should have soldiered on as they did for the years that they did, in the circumstances they did, and that the Tribunal should have found that that was the case.  But the decision is not for us: it is for the Tribunal. We simply say it is plainly within the legitimate scope of its decision-making.  In particular it made the point that in its view the waitresses were migrant workers with no certainty of continued employment, save at Munchkins, that there were considerations of convenience for one, that they were constrained by financial and in some cases parental pressure; that they had the fear that they might not obtain other work; that they had the comfort of Miss Guillery acting as a cushion until she left; and that they managed, therefore, to find a balance between conduct which was unwelcome and unlawful, as the Tribunal went on to find, and the advantages which their job gave them.  The members of the workforce got on well with each other amongst themselves.  One of the lay members of this Tribunal has observed that there are many situations in life where people will put up with unwanted or even criminal conduct which violates their personal dignity because they are constrained by social circumstances to do so.  A classic example, she points out, is that of the battered wife who for the sake of the children may remain at home permitting herself to be subject to violence, none of which she wishes, but all of which she endures because there is a greater benefit in what takes place.  But it does not make the violence right.  Putting up with it does not make it welcome, or less criminal. It is therefore not completely beyond the scope of reason to think that women in this particular situation should behave as they did.  As to initiating conversation it is explained in the passages we have cited by the Tribunal as being a defensive move on behalf of the Claimants, enabling them to divert much of the intentions of Mr Moss from the intrusive personal questioning which otherwise would have taken place as to their own sexual preferences, habits and contacts.  Accordingly, taken as a general point we see nothing in the perversity appeal.

24. As to specific matters which were raised, attention was drawn to aspects of paragraph 37 in which it was said that all of the many discrepancies in the evidence of the individual Respondents could not have properly been attributed to language difficulties, that the Tribunal as a whole, although Mr. Sendall did not quite put it this way, effectively bent over backwards to make findings in favour of the Claimants; that there were detailed aspects (see paragraph 3(a) to (i) of the Tribunal judgment) which flagged up inconsistencies; that it was perverse not to hold that the credibility of the Respondents had not been impaired by some discrepancy in their accounts of visits to the Citizens Advice Bureau and by a failure of that bureau to mention the complaint about sexual behaviour when it first wrote; and in the behaviour of the waitresses who amongst other matters accepted the suggestion that they had brought presents back from holiday, had in one case accepted a lift from Mr Moss and the like.

25. In summary, there were a number of individual points to which our attention was drawn.  In the context of a case such as this where there were clear lines drawn between that which was said on the waitresses’ behalf and that which was said on the management’s, it does not seem to us that it was necessary that specific findings should be made on disputed points of fact, or that the mere fact that a discrepancy of a greater or lesser extent could be pointed to in the evidence of one party or another necessarily meant that the conclusion was perverse.  In the end we have been totally unpersuaded that any central finding of fact was perverse in the sense that it was unsupported by credible evidence, and we hope we shall be excused for saying no more about that particular ground of appeal.

26. The case insofar as it alleges a failure to give reasons was put in these terms.  Not just Mr Moss gave evidence, so too did a Mr Puka.  Mr Sendall showed us parts of his witness statement which were largely corroborative of Mr Moss.  There was an additional point in that Mr Puka described how the Claimants had in front of him enjoyed putting their hands up the skirts of each other.  The Tribunal’s style was, as we have said, not to recite specifics of the evidence.  Very little mention is made of Mr Puka.  Here Mr Sendall says that the law requires that the parties should know why they have won or lost and that this Tribunal needed, therefore, to explain what it made of the evidence of Mr Puka.  It brushes it aside.

27. We accept that the law requires that there be sufficient in a decision to enable the parties to know why they have won or why they have lost.  We emphasise the extract from case law with which we began this judgment to the effect that what matters is that the Tribunal makes its decision on issues clear and makes it clear why it has reached that decision.  Where a witness is accepted as critical to a case one would expect a Tribunal to deal with the evidence of that witness.  Where a witness is merely corroborative and it is plain that the matters which that witness has raised have been dealt with, then it is not in our view necessary that the evidence should be ascribed to the witness himself.  Economy is a virtue, providing always that it is clear what the Tribunal has accepted and what it has not.  We are satisfied that the Tribunal here dealt with the substance of what Mr Puka had said in its findings in respect of the evidence and issues generally. In particular it dealt with a number of aspects upon which Mr Puka’s evidence touched.  This is particularly so at paragraphs 47 and 48, where the wording, “It was suggested on behalf of Mr Moss” we think is a reference to evidence of the nature given by Mr Puka.  We reject this complaint.

28. It is said that the Employment Tribunal failed properly to give separate consideration to the cases of each individual Respondent and effectively treated the evidence of the acts in respect of one as evidence of acts in respect of the other.  Mr Westgate points out and we accept that this is an unfair characterisation of the Tribunal’s decision.  It sets out on many occasions matters which are specific to one or the other of the Claimants.  This is particularly noticeable in the section which deals with the reasons for resignation, but it also applies to the differential evidence given in respect, for instance, of the seeing of photographs.  But a very considerable degree of overlap was inevitable in a workplace like this.  It was one where there were only eight or nine waitresses.  The waitresses all knew each other: they were the ones who had worked for the longest time.  One would inevitably be aware of much that had happened in respect of another in such a workplace.  It does not seem to us at all remarkable that in such a case a lot of the evidence would be summarised by a Tribunal in the terms which it adopted.  We do not see in that any reason why the judgment was flawed.

29. The argument of Mr Sendall continues that the Tribunal here failed properly to deal with the question of time limits.  What happened as we understand it was that the Tribunal sat in September and at the conclusion of those days’ hearing, no oral submissions were made to it.  Rather, the submissions were to be delivered in writing.  The Tribunal met to consider their findings on 3 December and 17 February.  In the written submissions for the Claimant, the Claimants raised the question of time and sought an extension of time on the basis that it was just and equitable to grant it, and that the matters of individual complaint were in any event all part and parcel of one and the same act.  The Tribunal, when it came to write its decision, said this at paragraph 23:

“In the discrimination claims there are some time issues.  Some of the things complained of go back several years and it is necessary for the Tribunal to decide whether there was one or more acts extending over a period.  If so, then this act or these acts should be regarded as done at the end of that period for the purposes of the time limit for bringing claims.  If any such act did not extend over a period then we need to decide if it is just and equitable to allow the Claimants or any of them to bring a claim for compensation in respect of those matters.  We have received the Claimants submissions on these time issues, but we have not had any submissions on them from the Respondents, and so we propose to make a decision on them at the remedies hearing.”

What therefore the Tribunal was saying was that it needed to hear from the Respondents and give them a fair chance of meeting that which the Claimants said.  Accordingly it did not determine as part of its decision on liability whether it had jurisdiction for the full extent of the time period under consideration.  This, complains Mr Sendall, is an error of law.

30. Mr Westgate, for his part, argues that it was an entirely permissible matter of case management.  The position had been reached that the Tribunal had no reasoning from the Respondents.  It was a matter of convenience and productive of no injustice of any sort for the Tribunal to allow the Respondents to have their say and to take it into account at the remedies hearing.  He argues that it was a matter of no substantial or any injustice because what the Tribunal had found was that the conduct of Mr Moss was persistent, that it continued throughout the period of each of the Claimants’ employment, that it was in effect unremitting, it happened almost every day that he would engage them in unwanted sex talk; and therefore it was plain that there was first a complaint or complaints which was within time and secondly that it was inevitable that any Tribunal considering the matter would be bound to conclude that the whole of the conduct complained of formed part of a series of events such that it would be natural that time would be extended in any event.

31. We are attracted by the approach which the President, Underhill J took to this when this matter came before him first in this Tribunal, on this appeal, in order to decide whether this Tribunal had jurisdiction.  He said that the time issue had been dealt with by the Tribunal at the remedy hearing.  Indeed it was in that hearing, as it had promised to do, that it raised the matter at paragraph 4.  He noted that there had been no argument on behalf of the Respondent that the act or acts of discrimination complained of before it did not extend over a period of time, that the Tribunal found that they did and commented:

“It may be correct, on a purist approach, that the ‘liability’ decision was provisional, as regards the acts which were potentially out of time, until the time issue was decided, but now that it has been no point of law remains.”

We think that the Tribunal here could have sought the views on paper of the employer and Mr. Moss at the time that they received the Claimants’ written submissions, and realised that the Respondents had simply not considered it necessary to answer them in anticipation.  On what is described by Underhill J as a purist approach that would have been the preferable course to take.  We would not wish to encourage any Tribunal to think that its powers of case management would naturally normally extend to deciding as part of a remedies hearing that which in law is required to be considered as a matter of jurisdiction in order to determine liability.  But in some cases, of which this is one example, it makes no practical difference and indeed in this case was a convenient way of dealing with the position as it then appeared.  It seems to us that it was inevitable, as indeed turned out to be the case, that the Tribunal would conclude as it did, given its findings that the conduct had persisted over the period of time which it had and given the point made by Mr Westgate that there was here essentially one complaint of continuing harassment.  Accordingly we cannot think that any injustice of any kind has been done to the Appellant by dealing with the matter in the practical way in which the Tribunal approached it.  We agree with Underhill J that no point of law truly remains here.  There is no injustice of any kind done to the Appellant.  There is no reason here for allowing an appeal against the decision on liability.

32. Having disposed of the issues which arise in respect of liability, we turn to the issues which arise in respect of remedy.  Three matters were raised by the Appellants.  First, the Appellants sought to argue that the Employment Tribunal gave no consideration when it made an award of joint and several liability against Munchkins and Mr Moss to the decision which this Tribunal had reached in Way and Another v Crouch [2005] IRLR 603.  That case considered whether a Tribunal had jurisdiction to make an award of joint and several liability in a case alleging discrimination.  The Tribunal recognised that claims for relief arising under the discrimination statutes are to be determined so far as compensation is concerned by payment of an amount corresponding to any damages which could have been ordered by a County Court, (see here section 65 of the Sex Discrimination Act, and section 66(1) which provides that such a claim may be the subject of civil proceedings in like manner as any other claim in tort and all such remedies shall be obtainable in such proceedings as will be obtainable in the High Court).  Although an award of joint and several liability is not available in a claim of unfair dismissal the Tribunal therefore held it was in the case of a discrimination claim.  Nothing arises as to that, but the Employment Appeal Tribunal there went further.  It held, as the head note recites:

“(2) If an employment tribunal considers it necessary to make a joint and several award of compensation then it should make clear its reasons for doing so.
(3) … it must have regard to the language of section 2(1) of the Civil Liability (Contribution) Act 1978.”

It suggested that the language of that Act meant that it was not appropriate in almost any case for a Tribunal to make a joint and several award which is 100 per cent against each Respondent, nor was it a permissible option for a Tribunal to make a joint and several award because of the relative financial resources of the Respondent.  What Mr Sendall argued was that this Tribunal here should have considered the Way v Crouch point.  It should have given express reasons for its decision to make liability joint and several.  He suggested that it was not possible for the Appellants to know why the Tribunal had decided as it did on this particular issue.

33. We confess to having very considerable doubts about the part of the decision in Way v Crouch which suggests that as between a Claimant and a Respondent or Respondents the percentage of liability of the Respondents is relevant in the way in which that Tribunal determined.  We consider the appropriate principle is that where there is an award of joint and several liability the Respondents or any one of them is liable for the full extent of the damages to the Claimant.  As between the Respondents a Respondent may have a right to seek contribution from a co-Respondent, depending upon the relative contribution and responsibility of each of the Respondents to the wrong which has been done, but we do not see how that affects the position of the Claimant, who is entitled, if the award is joint and several, to receive the full extent of his award from any such of the Respondents as he chooses.

34. Mr Sendall felt himself in some difficulty in arguing the contrary, although hesitatingly maintained that Way v Crouch nonetheless might have been considered by the Tribunal.  As a matter of general approach, where there is more than one respondent to a claim we consider that a Tribunal will have to decide whether or not it is to make a joint and several award.  In some cases the reason for it doing so will be obvious and need very little elaboration.  This is one such case.  Essentially Mr Moss was the company, so far as its behaviour towards these Claimants was concerned.  There is very little that involved any other person despite one passing reference to Mr Puka.  We think therefore that the Tribunal did set out sufficient in its reasoning to satisfy the requirement of the law and to let the parties know why it was that both here had been held jointly responsible.  It was entitled to do so. In short we reject this ground of appeal.

35. The second ground of appeal reflected the submission which had been made in respect of the liability judgment that there had been no sufficient distinction between the positions of the waitresses.  Each was awarded here the sum of £15,000 for injury to feelings.  There was no dispute that in any individual case that might not have been a perfectly proper award.  It was not suggested it was a manifestly excessive figure, but rather it was argued that here there must have been some difference properly discernible between the position of one of the Claimants and the next.  For instance, Miss Karmazyn had worked for five years, Miss Rivas for just over one.  That might suggest that there should have been a marked distinction in the amount paid.  The Tribunal however said why it was that they thought that here they should award the same amount to each.  They did this at paragraphs 33 to 34 of the remedies decision and in particular said this:

“34. We have considered carefully whether the award should be any different for each Claimant bearing in mind the differing length of time each of them worked at Munchkins.  After careful consideration we do not think that it is right to make the awards different.  All the Claimants had particularly distressing things said to them and experienced other things which amounted to distressing discrimination and harassment by Mr Moss.  The Claimants who lasted longer at the restaurant protected themselves by their coping strategies and were therefore better able to field the discrimination and harassment than those who were there for a shorter length of time.  We are also conscious of the fact that we have decided to award interest on the injury to feelings award which will tend to enlarge the compensation slightly for those who were there longer.  But since we regard overall the damage to each of the Claimants as roughly the same, we have found it inappropriate to try to award them different amounts.”

36. We confess to some unease about the appearance of broad brush decision making which an award of the same amount to each of the Claimants in slightly different circumstances seems to imply.  We have ourselves considered carefully whether this was an issue which we should remit for reassessment to the Tribunal.  In the event we have come to the conclusion that the Tribunal did have regard to the points which could be made to suggest disparity.  It plainly had regard to the fact that each of the waitresses was in a different position one from the other and the assessment of the overall damage to each was that which they had to make.  We remind ourselves, as we have done throughout hearing this case, that we were not in the Tribunal room. In a case like this in particular a Tribunal which sees and hears witnesses over an extended period of time and has the responsibility of making the judgment is the body best placed to determine it.  We cannot say from the reasons which are given, knowing as we do that it did direct their mind to the appropriate question, that the decision was beyond the scope of its permissible discretion.  It has the hallmarks of a careful, if agonising, evaluation rather than an arbitrary rule of thumb award and we therefore dismiss the Appeal against that upon the basis on which it was advanced.

37. The third point taken in respect of the remedies hearing was one taken in respect of the award by the Tribunal of damages for breach of contract.  Here the Tribunal awarded an amount equivalent to the notice period in each case.  Mr Sendall pointed out that (albeit since the Tribunal reached its decision in this case) the Court of Appeal has now delivered its judgment in the case of Stuart Peters Ltd v Bell [2009] EWCA Civ 938.  That makes it plain that in a situation such as the present the award to be made for breach of contract is an award of damages for breach of contract, and thus common law principles apply to decide whether there is a loss and whether it has, or should properly have, been mitigated.  It is accepted by Mr Westgate that that authority applies.  In the light of that he has been obliged to concede that the Appellants’ appeal in this respect must be allowed with the effect that the claims, insofar as they relate to that part of the remedies, must be allowed.  He sought to argue for Miss Kralova that in her case the employer had indicated that she should not work out a week’s notice as she had offered to do, but he accepts that if he were to recover that sum in respect of that week’s work she would require to issue a cross-appeal which she has not done.  We do not criticise him in the least for that, not least because the point is responsive and in the context of this case such a small amount, but the result of it is that there is no route available now to Miss Kralova in respect of that one week’s pay and the appeal in respect of her too must succeed in this respect.

38. Finally, we turn to an award which the Tribunal made at the end of its decision on remedies in respect of aggravated damages, when it awarded £1,000 in each case.  It set out correctly what the basis of the law was and then at paragraphs 35 and 36 it described how that principle should apply to the present case.  It did not blame Mr Moss for having made the case which he did in the Tribunal.  It declined to make any award against Munchkins or Mr Moss simply by reason of their defending the claim on the facts, which they did.  At paragraph 36 it said this, however:

“… we do think differently about the way in which the case was conducted on behalf of the Respondents.  The Tribunal has considered this very carefully.  The way the case was presented was indeed high-handed and insulting and oppressive to the Claimants.  This was to such an extent that the Tribunal did have to warn the Respondent’s representative about his approach and stop him on a number of occasions.  The Claimants were upset by the way the case was conducted and by the way in which they were questioned as explained in their witness statements.”

Later, in the same paragraph, it said that it accepted that robust defence of a Respondents’ position was to be expected, that in this case the Respondents were entitled to suggest that the Claimants had encouraged the sex talk, were exaggerating and at times lying and had collaborated in producing their evidence, but that the manner in which the hearing had been conducted upset the Claimants more than was necessary:  “It was inappropriate and excessive.”  Mr Sendall, who we should emphasise was not the legal representative concerned, complains about this that it is simply impossible for his clients to understand precisely what it was that the representative did that was high-handed, insulting and oppressive, or inappropriate or excessive.  The representative himself might be entitled to know, particularly since he was legally qualified, what it was that amounted in effect to an allegation of professional misconduct.  Mr Westgate accepts he is in some difficulty in responding to this.  He only faintly argued that the representative must actually know what it was that he was being accused of, indeed found guilty of, because it must have been the subject of those occasions when he had been warned about his approach and stopped.  But that does not excuse a Tribunal for failing to give sufficient and adequate reasons.  Here we do think that there is a proper reasons challenge to this part of the decision. Whereas we hope it has been clear from the balance of our judgment in respect of both liability and remedy that we feel that it is completely clear to the Appellants why they lost the claim and clear how the main central issues in the case were disposed of by the Tribunal, here they simply can be excused for not knowing.  Without knowing what precisely it was that the representative did or did not do there is no way in which a court upon review could discern whether the sum awarded was appropriate at all or in part.  The giving of reasons does not simply fulfil the needs of justice as between the parties, although it does, nor simply allow a court on appeal to review a decision, as it does, but also acts as a template for the decision-maker in order to determine what the appropriate figure should be, if any.  It is thus an important matter.  There is insufficient said.

39. We shall remit this part of the decision to the Tribunal: in the light of the submissions made to us by Mr Sendall and Mr Westgate to the same Tribunal, but we should emphasise that this is not simply, as it seems to us, a matter of giving reasons for a decision which it has already reached.  The Tribunal should carefully consider what it was that the representative did.  It will wish to consider first whether that can be properly the subject of a costs award rather than an award of aggravated damages, in which respect they must find, as they appear to have thought, that there was some additional hurt caused to the Claimants to the extent that the conduct of the representative went beyond a legitimate and robust defence of the claim, if it did, as distinct from the hurt caused by just that.  Secondly, it must relate the amount of damages only to the extent that hurt was caused by that conduct which went beyond the acceptable.

40. We emphasise that in coming to any such finding the Tribunal is dealing with a professional man in respect of whose conduct there may yet be repercussions, and that therefore the findings need to be careful and clear.

41. Accordingly for all the reasons we have given we reject the appeal upon the grounds on which it has been advanced on liability and we allow the appeals in respect of remedies to the extent indicated, that is in respect to the challenge to the award of damages for the notice period and in respect of aggravated damages.  The consequence of the first of those two remedies decisions is that the award in respect of the notice period simply disappears, and the appeal is allowed without more.  The consequences of the second is remission on that issue to the same Tribunal.

Published: 01/06/2010 14:24

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