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Case No: A2/2010/0400

Neutral Citation Number: [2010] EWCA Civ 1163

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Thursday, 2 September 2010

Before:

LORD JUSTICE PILL

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Between:

MUNCHKINS RESTAURANTS LTD & ANR  (Applicants)

- and -

KARMAZYN & ORS  (Respondents)

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(DAR Transcript of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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Mr Anthony Sendall (instructed by Speechly Bircham LLP) appeared on behalf of the Applicants

The Respondents did not appear and were not represented.

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Judgment

(As Approved by the Court)

Crown Copyright ©

Lord Justice Pill:

1. This is an application for permission to appeal against a decision of the Employment Appeal Tribunal dated 19 May 2010, following a hearing on 28 January 2010. The applicants are Munchkins Restaurant Limited and Mr H Moss.

1. The EAT upheld a decision of an employment tribunal, whose reasons were given in a document dated 24 March 2009. The tribunal found that the claimants, Miss Karmazyn, Miss Kuylle, Miss Rivas and Miss Kralova, who were employed by the applicants, had been subject to discrimination, harassment and unfair constructive dismissal. They were waitresses at premises in London and it is agreed that Mr Moss was in effect their employer, though the restaurant at which the successful claimants were employed as waitresses was owned by the company.

1. Munchkins is a restaurant near the British Museum. As stated by the EAT at paragraph 1 of their judgment:

"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."

1. The employment tribunal heard evidence and submissions over a period of six days in September 2008. Having found for the claimants, there was subsequently a remedies hearing at which each of them was awarded under the disputed head the sum of £15,000. The tribunal's decision is in considerable detail. They heard evidence from the claimants, from Mr Moss and other witnesses. The claimants described the circumstances in detail and the complaints made. As put by the EAT in its ruling:

"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 hand extreme…"

It is not necessary to describe the complaints in detail.

1. I turn to the helpful submissions made by Mr Sendall on the applicants' behalf. These have been set out in a very detailed skeleton argument. They are helpfully summarised in a written statement recently supplied under Practice Direction 52, paragraph 4.14A(2). They have been developed orally this morning by Mr Sendall. This is a renewed application for permission to appeal to this court, permission having been refused on a consideration of the papers by Sir Richard Buxton in a notice dated 1 July 2010. It is submitted that the tribunal failed to recognise that there were four separate claims brought by four separate individuals. For them to succeed, each of them had to stand or fall on her own merits. It is submitted that there was a fundamental failure by the tribunal to analyse each separate case and to identify the acts of discrimination in relation to each complainant.

1. It is further submitted that there has been a fundamental error in that the tribunal did not consider whether the complaints had been made in time. There are no findings in the liability decision as to when the acts complained of occurred. What the tribunal did, having received written submissions following the oral hearing, was to defer the question of limitation to the remedies hearing. This, submits Mr Sendall, was a fundamental error.

1. It is submitted that the decision is insufficiently reasoned and that the findings of fact (and I have been referred to a number of paragraphs in the decision of the tribunal) are perverse. It was accepted there was a good deal of sexual talk at the restaurant. The submission is that, on the evidence as to the complainant's own conduct, it was perverse to find that the complaints were made out against the applicants. Considerable detail has been given in the skeleton argument and in the briefer statement. It is submitted that the evidence has not been subject to the rigorous analysis which was required. It is submitted that the complainants were colluding to make allegations that were false; further, that the allegations have been exaggerated and embellished. It is inconceivable, it is submitted, that one of the waitresses would have stayed for five years as a waitress if the conduct was as she and the other waitresses described.

1. The general submission is that the tribunal adopted too broad a brush to the question and the issues arising. Analytical consideration was required and was not undertaken. Mr Sendall accepts the difficulty he has at this stage of this litigation in persuading this court to reverse the finding of the tribunal. His task is indeed an uphill task.

1. The fact-finding tribunal is the employment tribunal, who heard evidence over a period of six days and obviously gave careful consideration to it and the written submissions which followed it. It was for them to assess the witnesses and to assess whether the complainants' allegations were true. To do that it was necessary to have regard to the particular situation, a confined workplace, a restaurant in Central London where no doubt Mr Moss was seeking to create an atmosphere which would attract customers.

1. This matter has also been considered by the EAT. That can only operate on errors of law, but this EAT, as constituted, included a High Court judge and two lay members, who were well able to assess the approach of the tribunal and whether perversity could be established or whether the approach of the tribunal was so broad brush that there had not been a proper hearing and consideration of the evidence.

1. That was the central part of Mr Sendall's submissions. He did also raise the question of joint and several liability, whether the order in relation to both applicants was appropriate, and he raised the question whether it was rational to make awards in the same amount to each of the complainants, notwithstanding the different evidence they gave and the different periods of time they had been employed as waitresses at Munchkins.

1. The EAT have also given very careful consideration to the evidence and the findings of the ET. They were confined to considering issues of law. Of course an issue of perversity may be an issue of law. If findings of fact are beyond the range of what can reasonably be made, then an error of law is committed.

1. I do not say this by way of criticism, but Mr Sendall has in effect repeated the submissions which he no doubt made and no doubt made equally helpfully to the EAT. He has not in his recent statement attempted to any extent to challenge the reasoning of the EAT. He rightly says that this court is concerned with the lawfulness and the rightness of the decision of the tribunal, but in considering that question the court is entitled to have regard to its analysis by an expert tribunal in the EAT.

1. I do not propose to read them, but I have been referred amongst other paragraphs to paragraphs 23 to 25 of the tribunal judgment in relation to the jurisdictional issue. It is noteworthy that no submissions appear to have been made to the tribunal on the limitation issue. That was not the responsibility of Mr Sendall, who did not appear at the tribunal. But it is very surprising, if there were any merit in this point, that, in the written submissions which were invited and supplied, it is not claimed that the allegations made against the applicants were out of time and that the tribunal should find accordingly.

1. This issue was properly raised by Mr Sendall before the EAT. He pointed out, no doubt as he has to me, that the tribunal itself was aware of the point because of the contents of paragraph 24. That being so, he submits, they should not have given a liability judgment without considering the limitation question, whether or not submissions had been made on behalf of the applicants. That issue was carefully considered by the EAT, and I find their reasoning on the point (which is set out at paragraph 31) to be wholly persuasive. I do not repeat it or seek to improve upon it. In my judgment, it adequately deals with the situation.

1. While referring to the EAT decision, I also refer to their conclusions on perversity, having carefully considered the evidence and having been referred to the case of Yeboah v Crofton [2002] EWHC Civ 794. I cite one of their findings which related to the allegedly bizarre nature of the tribunal's conclusion, paragraph 23:

"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 references, habits and contacts. Accordingly, taken as a general point, we see nothing in the perversity appeal."

1. The point was taken, though not repeated orally this morning, that insufficient consideration had been given to the evidence of Mr Puka, who worked at the premises. I also agree with the conclusions of the EAT on that issue (set out at paragraphs 26 and 27).

1. The EAT had regard to the confined nature of the workplace, a restaurant in Central London, and they stated at paragraph 28:

"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."

I agree with that approach. What was alleged in this case was a campaign of harassment against all four complainants. It occurred in a confined workplace. It was appropriate for the tribunal to deal with the case as they did.

1. I have regard to the comment of Sir Richard Buxton when refusing leave on a consideration of the papers:

"There was nothing wrong in an industrial jury taking a broad approach to a situation that was deeply offensive to all concerned."

1. I follow the strength with which the point was put on behalf of the applicants at the tribunal, that the conduct of the complainants was, viewed from a distance and by people in a different situation, difficult to understand, but the tribunal had well in mind the background of the women, the nature of the trade, the vulnerability of the women and the evidence given. I have no doubt that the EAT were entitled to uphold the findings of the tribunal.

1. In relation to the referral of the limitation question to the remedies hearing, I refer to paragraph 31 of the EAT's decision and agree entirely with the way in which it is put.

1. I also agree with the reasoning as to the awards to each of the complainants and their making awards in the same amount in each case. The initial impact of the campaign of harassment which the tribunal found to have occurred was serious, and I see no error of law in making an equal award in each case. I see no merit in the order that there should be joint and several liability. I agree with the reasoning on that issue, both of the EAT and of Sir Richard Buxton in his written reasons for refusal. I will not read those reasons fully. I agree with them, save that with respect I prefer the reasoning of the EAT on the jurisdictional question, which is fuller and deals with the practical situation. There was no specific finding by the tribunal that "all of the claims were therefore in time".

1. Well though Mr Sendall has put the case upon behalf of the applicants, I see no real prospect that on fuller consideration this court would reverse the finding of the EAT or make the directions favourable to the applicants by way of a re-hearing. Accordingly, the application is refused.

Order: Application refused