Geraghty v Forose

Factual and Procedural Background

This appeal arises from findings made by an Industrial Tribunal that the Appellant, an employer of an ice-cream shop, unlawfully sexually harassed the Respondent, a part-time employee, on the ground of sex. The harassment occurred between March and June 2017 when the Respondent was 15 years old. The Tribunal awarded the Respondent damages totaling £71,860, including injury to feelings, psychiatric injury, aggravated damages, and interest.

The Appellant was unrepresented both before the Tribunal and this court but had received legal advice at various stages. The appeal was considered on four points of law specified in the notice of appeal. The court also addressed procedural issues concerning the timeliness and proper lodging of the appeal.

Anonymity was initially mandated under the 2005 procedural rules due to the sexual nature of the allegations. However, by the time of the Tribunal hearing in 2021, new rules gave discretion over anonymity orders. The Respondent requested removal of anonymity to publicize the truth and empower others, while the Appellant opposed this. The Tribunal revoked anonymity but preserved it pending appeal. This court ultimately removed anonymity, allowing the parties to be named and the case details publicized.

Legal Issues Presented

1. Whether the appeal was lodged in time and in compliance with procedural rules.
2. Whether the Tribunal erred in law and denied the Appellant a fair hearing by requiring cross-examination of the Respondent to be conducted via the Employment Judge due to a Risk of Sexual Harm Order (ROSH).
3. Whether the Tribunal erred in law by admitting similar fact evidence relating to previous allegations made against the Appellant in 2013.
4. Whether the Tribunal erred in law in respect of the quantum of damages awarded, including potential double counting and manifest excessiveness of awards for injury to feelings, psychiatric injury, and aggravated damages.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended the appeal was properly served within the six-week time limit but acknowledged delays in lodging documents and paying fees.
• He objected to the Tribunal's procedure requiring cross-examination of the Respondent to be conducted through the Employment Judge, asserting this was unfair and overly accommodating to the Respondent.
• The Appellant denied the allegations, claiming they were false and that the Respondent and others were either mistaken or dishonest.
• He challenged the admission of similar fact evidence from 2013 and the amount of damages awarded, particularly contesting the quantum and alleged double counting.

Respondent's Arguments

• The Respondent contended the appeal was out of time and the procedural requirements had not been properly followed.
• She maintained the correctness of the Tribunal's procedure for cross-examination, given the ROSH order restricting direct contact.
• The Respondent supported the admission of similar fact evidence, emphasizing the striking similarity of past allegations.
• She upheld the damages awarded by the Tribunal, including injury to feelings, psychiatric injury, and aggravated damages.
• She requested removal of anonymity to publicize the truth and empower others.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the issue of anonymity, noting the change in procedural rules granting tribunals discretion. The Respondent's wish to remove anonymity, combined with the principle of open justice and prior media reports, outweighed the Appellant's privacy concerns. The court found that the qualified privacy rights under Article 8 ECHR were outweighed by open justice and freedom of expression under Article 10 ECHR, thus revoking anonymity.

Regarding the appeal's timeliness, the court exercised its discretion to allow the appeal despite procedural irregularities because the Appellant had made efforts to comply, no significant prejudice was identified, and there was merit in at least one ground of appeal.

On the Tribunal's procedure for cross-examination, the court recognized the unusual approach necessitated by the ROSH order restricting contact between the parties. It found the procedure appropriate and that the Appellant received a fair hearing, with no evident legal error.

The court upheld the Tribunal's admission of similar fact evidence from 2013, reasoning that the allegations were strikingly similar and the Tribunal acted within its discretion. Excluding such evidence would have been irrational.

In relation to damages, the court accepted the Tribunal's findings on the Respondent's credibility and the seriousness of the harassment. However, it found the awards for injury to feelings and psychiatric injury excessive and identified double counting. The court noted deficiencies in the evidence, including limited medical records and insufficient exploration of factors affecting the Respondent's mental health and education. Exercising its power to substitute awards, the court reduced the combined award for injury to feelings and psychiatric injury from £61,500 to £40,000, maintaining the £6,000 award for aggravated damages, resulting in a total award of £46,000 plus interest.

Holding and Implications

The court ALLOWED the appeal in part, specifically reducing the award for injury to feelings and psychiatric injury while upholding the findings of discrimination and sexual harassment by the Appellant.

The total damages award was reduced from £71,860 to £46,000 plus interest, reflecting the court's view that the original awards were excessive and partially duplicative. The court confirmed the appropriateness of the Tribunal's procedures under the ROSH order and the admissibility of similar fact evidence. The removal of anonymity permits public identification of the parties and full reporting of the case.

No new legal precedent was established; the decision primarily clarifies procedural discretion in anonymity orders, the management of hearings under restrictive orders, and the assessment of damages in sexual harassment claims.