Rohit Vikal & Anor v April Freke

The appellants were the respondents in a claim by Miss Freke in the Employment Tribunal at Reading. I will refer to Miss Freke (as the Tribunal did) as "the claimant".

The claimant worked as a beauty therapist for the second appellant. The first appellant is a director of and owner of the second appellant. The Tribunal heard evidence and submissions on 12 and 13 October 2023. In a reserved judgment dated 15 November 2023, it upheld the claimant’s complaints of sexual harassment and unlawful deductions from wages. The wages claim is not the subject of this present appeal.

The sexual harassment complaint comprised a number of component elements which the Tribunal ultimately found had been established. These were set out by the Tribunal between ET § 40 and 50, and consisted of the following conduct by the first appellant:

Assessment of remedy was reserved and later dealt with at a separate hearing in December 2023. The claimant was awarded £1,522 for the wages claim, and a total sum of £19,305 for the harassment claim, comprising financial loss of £2,305 caused by the harassment, and an award of £17,000 for injury to feelings. The remedy decision is not appealed.

Of the seven grounds of appeal originally presented to the Employment Appeal Tribunal, six were found at a rule 3(7) sift and at a rule 3(10) hearing to disclose no arguable error of law. The effect of that is that the only ground which has been allowed to proceed to a full hearing today is ground 7, which contains two paragraphs. These were paras.20 and 21 of the original proposed grounds.

In para.20, the appellants submit that, contrary to the principles in Tui UK Limited v. Griffiths [2023] UKSC 48, the Tribunal impermissibly accepted the evidence of the claimant and thereby rejected the evidence of the respondent in relation to the incident with the car keys. At para.21 it is suggested that the Tribunal erred in concluding that the incident with the car keys event happened by placing reliance on its conclusions about the other incidents.

The focus of this appeal is therefore extremely narrow. It focuses on what has been described as “the car keys incident” which, of the various episodes I referred to, is number 6 on the list of 8 instances of proven harassment. It is a challenge to the Tribunal's findings at paras.22 and 47 of its reasons.

The Tribunal had witness statements from both the claimant and the first appellant, and heard evidence on oath from both. It recognised that most of the claimant's allegations were matters said to have taken place in private when only the claimant and the first appellant were present. It took that factor into account in its detailed and careful findings on credibility at para.33. The claimant's witness statement of 14 September 2022 was included in the bundle for this appeal hearing. It set out the details of her various complaints, and within that statement she described the car keys incident in some detail. That is found at p.87 of the core bundle. The first appellant's witness statement, dated 18 September 2022, is also in the bundle at core bundle pp.90 to 95. No mention is made of the car keys incident. The first respondent was, however, have been well aware of that allegation around a year prior to the date of the hearing. In any event, since the burden of showing harassment rested on the claimant, the claimant's evidence was taken first, in accordance with the usual practice.

The first point in this appeal relies upon the decision of the Supreme Court in Tui. Tui, however, involved a situation where a fact-finding court had rejected part of the evidence of an expert witness whose conclusions had never been challenged in cross-examination and in circumstances where there was no competing expert opinion. The Supreme Court gave guidance as to the circumstances in which cross-examination might be necessary before evidence could be rejected, but stressed that its guidance was based upon broad principles of fairness and did not seek to establish fixed rules of law. Tui did not, however, concern a situation where a fact finder accepted uncontradicted evidence of which advance notice had been given.

Neither the Tribunal's reasons nor the grounds of appeal suggest that the first appellant gave any evidence at all about the car keys incident. The appellants accept, however, that the claimant gave evidence about that incident and that her evidence was never challenged in cross-examination. Nothing in the Tui decision supports the proposition that the Tribunal was not entitled to accept the claimant's unchallenged evidence. If anything, Tui is authority for the contrary proposition.

On the separate point made in para.21 of the grounds of appeal, it is important to read the Tribunal's reasons as a whole, including the various matters referred to in para.33. This particular incident was, as the Tribunal correctly noted, one that was said to have happened when the claimant and the first appellant only were present. The allegation is very specific and was consistent with the other evidence of the claimant that the Tribunal accepted as credible and reliable, about the first appellant attempting to engage her in conversation about his feelings for her and his wish to enter a relationship with her. It was entirely proper for the Tribunal to have regard to the totality of the course of conduct, of which it plainly concluded the car keys incident formed part. That was an issue of fact, and the conclusions reached by the Tribunal were open to it on the evidence.

For these reasons, there is no merit in either of the two paragraphs of ground 7, and the appeal is therefore refused.