Background:

The Industrial Tribunal found, at first instance, that the respondent had discriminated against the claimant.  The claimant was a part-time employee in his ice cream shop.   It was found that the respondent had sexually harassed the claimant.  This led to an award of £41,500 for injury to feelings, £20,000 for psychiatric injury and £6,000 for aggravated damages.  Coupled with interest this led to a total of £71,860.

The claimant appealed this to the Court of Appeal.  There were a number of grounds raised in the appeal; most notably, the requirement from the Tribunal that the cross-examination of the respondent be conducted via the Judge.  It should be noted that at the Tribunal and in Appeal the respondent was a self-litigant. It was noted that the harassment allegation was physical as well as relating to sexualised comments about the claimant’s body and her relationships.  The defendant pleaded guilty to common assault in relation to his interactions with the claimant.  A Sexual Offences Prevention Order was also imposed on the claimant before being changed to a Risk of Sexual Harm Order.  The reason for the change being that a Prevention Order can only be granted where there is a conviction for a sexual offence. The second pertinent appeal related to the compensation awarded.

Outcome:

On the issue relating to the cross-examination via the Employment Judge, the Court of Appeal outlined the difficulty for the respondent in conducting the defence.; the issue being that there was the Risk of Sexual Harm Order against him in relation to the claimant.  The Tribunal allowed the panel, claimant and respondent to be in separate rooms and connected via video link.  There would also be staggered arrival and departure times for the parties.  In terms of cross-examination, the respondent was required to provide questions in advance.  It would then be for the Vice President of the Tribunal, insofar as they were appropriate, to put the questions to the claimant.   If the respondent wanted additional questions asked then they could be made to the Vice President following the questions being asked.  This was to ensure that the respondent would not directly speak to the claimant.  The Court of Appeal acknowledged that it was not a ‘traditional’ method of cross-examination but stated that it was an appropriate and structured way forward.  As a result, the Tribunal cannot be faulted for how it dealt with the need to provide for a special procedure considering the circumstances.

The second issue was the award.  This was based upon a Consultant Psychiatrist report outlining that the claimant had an adjustment disorder and stress reaction.    Dr Best felt that it would lead to a mental disorder lasting for approximately 3 to 4 years.  The difficulty for the Court of Appeal was the injury to feelings and psychiatric injury which could amount to ‘double counting’.  This was especially so considering the reliance on Dr Best’s report for both elements.  The Appeal court also referred to the lack of medical records relating to the claimant in compiling the report. Furthermore, the argument that the claimant’s education had been impacted was not fully examined considering the lack of School Reports which the claimant stated she no longer had and the fact that she was using alcohol and drugs leading to absences from School.   As a result, the award for injury to feelings (inclusive of psychiatric injury) was changed to £40,000.

Practical Guidance for Employers:

This case demonstrates that the Tribunal should avoid ‘double counting’ when it comes to injury to feelings and psychiatric award.  This allowed partial success for the respondent here.  Very interestingly was the approach taken by the Tribunal in relation to cross-examination where the respondent was representing himself.  The ‘special’ procedure of producing the questions in advance, being overseen by the Judge and then asked by the Judge was seen as ‘without fault’ by the Court of Appeal.  This perhaps could establish a precedent in these rare situations when it is not appropriate for the respondent to directly question the claimant.