The NI Court of Appeal upheld an ET decision to make extensive special measures (or adjustments) to the ET process and no anonymity order in sexual harassment case.
Ms Forose was a part-time employee within Mr Geraghty's business, namely 'Scoopy Sweets' an ice cream shop in Armagh. It was found that Mr Geraghty had sexually harassed Ms Forose between March and June 2017, when she was fifteen years old. 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 award of £71,860.
The Respondent acted as a litigant in person at the Tribunal Hearing. Given the nature of the allegations there were a number of special measures put in place. An initial anonymity order was removed by the date of Trial. The Respondent was not allowed to directly cross-examine the Claimant, rather questions were provided in advance to the Vice President, who asked the questions on the Respondent's behalf. There was a staggard arrival of the parties at the Tribunal building. The Parties were in separate rooms giving evidence by video link. Following the decision, the Respondent lodged an Appeal to the Court of Appeal on four points of law as follows:
1. The Removal of the anonymity order;
2. The improper use of special measures; and
3. The incorrect application of law which saw the OITFET taking into account previous allegations made against the Respondent in 2013; and
4. The award.
The Court of Appeal Held:
1. That the Tribunal was right to remove the anonymity order and quoted the strength of the principle that justice should be open and public, the fact that local media was reporting the prosecution of Mr Geraghty in the Magistrates' Court for the same conduct, and the desire by Ms Forose to remove anonymity. It emphasised that Article 8 of the European Convention on Human Rights: right to privacy is a qualified right, and significantly outweighed by the other factors.
2. While it was not the traditional method of cross examination, in the circumstances of the case the measures were appropriate and structured. There was no error in law in adopting the procedure, but rather the use of measures allowed the case to be heard. Fundamentally, the Court was satisfied that the Respondent received a fair hearing.
3. Admission of evidence about alleged harassment in similar circumstances in 2013 was within the discretion of the Tribunal, they did not err in law in admitting that evidence, indeed it would have been irrational to exclude it.
4. There was an element of 'double counting', in other words the same injury was compensated twice, in respect of the psychiatric damage and injury to feelings claims. Both awards were based on a single report from Dr Best, and the overall award was considered to be excessive. The award was reduced from £61,500 to £40,000 (plus the £6,000 aggravated damages award).
They reviewed the award for damages, namely the 'double counting' where the tribunal considered psychiatric illness and injury to feelings. They reassessed the award to stand at £40,000.
What does this mean for Employers?
This case highlights that the traditional methods of giving evidence in a Tribunal are not always going to be appropriate. In particular circumstances, special procedures may be required. 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. These alternatives should be borne in mind in the rare situations when it is not appropriate for the respondent to directly question the claimant, and will probably be particularly significant in discrimination cases. However, such measures will undoubtedly add to the time taken for a case to be heard and ultimately costs.
This case also emphasises the risk in psychiatric damage/injury to feelings claims. Tribunals should avoid ‘double counting’ (i.e. compensating the same injury twice) when it comes to injury to feelings and psychiatric awards. This allowed partial success for the Respondent here on Appeal.
The NI Court of Appeal returns case to Tribunal for re-hearing owing to perceived unfairness at first hearing
Ms Andrews was employed by Bryson Charitable group, to provide maternity cover on a fixed term contract. She claimed that she was unfairly dismissed by the Respondent, and that there had been an unlawful deduction from her wages. Part of her claim was that from her second day as Assistant Director of HR she experienced behaviours and decisions of Senior Managers relating to financial probity and governance within the Respondent, which caused her concern. The Claimant stated she was not protected adequately through the whistleblowing policy or through the grievance process, and was treated to detriment as a result.
The Tribunal determined that she failed to meet the threshold of establishing a Prima Facie case (this is an 'on the face of it' or answerable case, meaning she had failed to prove on balance that there was a case for the Respondent to answer and defend) and as such they dismissed her claim for unfair dismissal and unlawful deduction from wages. They found that the procedure adopted by the Respondent was fair throughout the grievance process. The Claimant Appealed to the Court of Appeal against the decision of the Tribunal to dismiss her claim that she was not adequately protected through the grievance process, or that she had been subject to unlawful detriment or less favourable treatment.
The focus of the appeal was that the Claimant didn’t receive a fair hearing in the following respects:
1. The Tribunal refused her request to be accompanied by a McKenzie friend (i.e. someone to provide assistance and support to her in the course of the hearing);
2. The hearing was made a 'spectator event' for the benefit of certain law students;
3. Ms Andrews could not represent herself properly having had two anxiety attacks;
4. There was unfairness in the way in which the hearing bundles were provided to her;
5. She was not permitted to question the Respondent's witnesses.
In relation to the McKenzie Friend issue the Court of Appeal highlight (para 18):
"the appellant’s right, again rooted in procedural fairness, was to be given the opportunity to elaborate on the particulars and basis of her application: in short, to outline the facility, or arrangement, which she was proposing and her reasons for doing so. The evidence before us suggests that she was denied this right."
The Court also concluded that permitting trainee Barristers to be present should not have been allowed to outweigh the interests of the unrepresented party.
The Court of Appeal determined that taking these and a number of other factors cumulatively, the complaint for procedural unfairness was established, and remitted the case for fresh hearing before a new panel.
What does this mean for Employers?
This case highlights the importance which will be placed on the right to a fair hearing, and ensuring equality of arms between Claimants and Respondents in presenting their cases. The Tribunal are likely to steer in the balance of favour on requests for Claimants for assistance and support at hearing even from an unqualified person, and in respect of requests for special measures (as can be seen from the previous article). Procedural fairness and ensuring the right to fair hearing will be key considerations in any requests. This is likely to add significant time to hearings in considering the issues, and ultimately costs.