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United Kingdom Employment Appeal Tribunal


You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ministry Of Defence v Hunt [1995] UKEAT 85_95_0812 (8 December 1995)
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Cite as: [1995] UKEAT 85_95_0812

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    BAILII case number: [1995] UKEAT 85_95_0812

    Appeal No. EAT/85/95, EAT/14/95, EAT/94/95
    EAT/468/95, EAT/181/95, EAT/68/95

    EMPOLYMENT APPEAL TRIBUNAL

    58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

    At the Tribunal

    On see below

    Judgment delivered

    On 8th December 1995

    THE HONOURABLE MR JUSTICE MAURICE KAY

    MR A C BLYGHTON

    MRS R CHAPMAN


    EAT/85/95

    MINISTRY OF DEFENCE
              APPELLANT

    MRS S HUNT          RESPONDENT




    EAT/14/95

    MINISTRY OF DEFENCE
              APPELLANT

    MRS D J WHEELER          RESPONDENT




    EAT/94/95

    MINISTRY OF DEFENCE
              APPELLANT

    MRS S GEORGE          RESPONDENT




    EAT/468/95

    MINISTRY OF DEFENCE
              APPELLANT

    MRS S L DONALD          RESPONDENT




    EAT/181/95

    MRS S ANDERSON
              APPELLANT

    MINISTRY OF DEFENCE          RESPONDENT




    EAT/68/95

    MRS J STUART
              APPELLANT

    MINISTRY OF DEFENCE          RESPONDENT



    Transcript of Proceedings

    JUDGMENT

    Revised


     

    APPEARANCES

    For the Appellant

    For the Respondents

    APPEARANCES

    For the Appellant

    For the Respondents


     

    MR JUSTICE MAURICE KAY: This single judgment relates to six appeals which we have heard consecutively over a period of five days. They all arise out of decisions of Industrial Tribunals in cases in which women who were dismissed from the Armed Forces by reason of pregnancy, claimed compensation. In each case the Ministry of Defence admitted liability and the hearing in the Industrial Tribunal was concerned solely with issues of quantum.

    In four of the six cases the Ministry of Defence is the appellant. In the other two (the case of Mrs Anderson and Mrs Stuart) the Ministry is the respondent. All six cases were decided in Industrial Tribunals after this Court presided over by Morison J had laid down guidelines in Ministry of Defence v Cannock & Others [1994] ICR 198. This is not the first occasion upon which the Employment Appeal Tribunal has heard a batch of cases decided in the Industrial Tribunals after Cannock. We remind ourselves of, and respectfully agree with, the observation of this Tribunal presided over by Tucker J in Ministry of Defence v Bristow [Judgment delivered on 24th July 1995, presently unreported]:

    "Such cases have been considered by the Appeal Tribunal on many occasions, notably in MOD v Cannock & Others [1994] ICR 918, where the Employment Appeal Tribunal sought to give general guidance to Industrial Tribunals on their approach to such cases. Although the guidance was obiter to the decisions, it was given by an experienced Appeal Tribunal after careful submissions by distinguished leading Counsel. While each application must be viewed individually, it is to be hoped that guidance such as this will if possible be followed, since it is highly desirable that there should be certainty in these matters."

    We too expect that in the great majority of cases the guidance given in Cannock on specific issues will be followed. However, guidelines are not tramlines and individual cases must be decided upon the evidence and factual findings in them. Some of the grounds of appeal we have had to consider have been based on alleged misdirections in law. The majority, however, have been founded upon allegations of perversity. Whilst remaining conscious of the Cannock guidelines, we have also had to have regard to the generally applicable approach of this Appeal Tribunal to perversity appeals. This was most fully explained by the President (Mummery J) in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440, 443:

    "Whenever an appeal is based upon the perversity ground, this Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Industrial Tribunal would have reached a different conclusions on the evidence. An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This Tribunal should only interfere with a decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is "irrational", "offends reason", "certainly wrong" or "is very clearly wrong", or "must be wrong" or "is plainly wrong" or "is not a permissable option" or "fundamentally wrong" or "is outrageous" or "makes absolutely no sense" or "flies in the face of properly informed logic". This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher Courts) have characterised perversity. The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of Industrial Relations, including sex discrimination, in which different conclusions may be reached by different Tribunals, or within the realm of reasonableness. It is an area in which there may be no "right answer". The consequence of this approach, also approved in cases of high authority, is that it is not appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to "meticulous criticism" or "detailed analysis" or to trawl through it with a "fine toothcomb". What matters is the substance of the Tribunal's decision, looked at "broadly and fairly" to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisors to identify an error of law that may have occurred in reaching the conclusion."

    We are also mindful of the difficulties which will be faced by appellants in many cases if they have not taken timeous steps to procure the Industrial Tribunal Chairman's Notes of Evidence in relation to a perversity appeal: see Piggott Brothers Ltd v Jackson [1992] ICR 85 per Lord Donaldson of Lymington MR at page 90.

    Sometimes it is possible to argue a perversity appeal on the face of the Industrial Tribunal decision itself or as a result of agreements and concessions made by the parties at the Appeal. However, this is by no means always the case.

    "Perversity" in this context does not connote bad faith. In two of the appeals falling for our consideration the Ministry of Defence, whilst expressly eschewing any allegation of bad faith, has sought to characterise a particularly constituted Industrial Tribunal as acting "in defiance" of Cannock. We shall return to the specifics of this approach when we deal with the matters raised in the cases of Hunt and Wheeler. However, we think it appropriate in this general introduction in to record our view that if the Ministry were not actually alleging bad faith in those two cases its allegations fell very little short of it. In our judgment, such an approach was wholly unwarranted.

    Before we turn to the six individual appeals before us, we shall identify some issues which have arisen in more than one of the appeals and which seem to us to raise matters of general importance.

  1. Matters of General Importance
  2. (i) "Chance" perversity.

    In Cannock the general guidance given in relation to compensation for loss of earnings posed a series of questions. First, "What are the chances that, had she been given maternity leave and an opportunity to return to work, the applicant would have returned?" Secondly, "What the chances are that the woman would have been in a position to return to work, had she been given the opportunity." Thirdly, "The next question relates to the length of service, if any, which the woman had hypothetically lost." These passages are to be found at pages 951 and 952. It was in this context that the guidance was at pains to emphasise the assessment of chances rather than a "findings of fact" approach. In this as in other cognate areas it is customary to assess chances in percentage terms. In some of the appeals before us Industrial Tribunals have assessed the chance at one or more of the three stages as 100%. This has been attacked by the Ministry of Defence on the basis that it is an approach which, whilst masquerading as the assessment of a chance, is tantamount to a finding of fact. It is therefore, the Ministry contend, perverse per se. We do not accept this submission. A significant feature of the present cases is that Industrial Tribunals have been called upon to assess chances many years after the unlawful act upon which liability is founded. It follows that for most and sometimes all the period requiring consideration, the Tribunals have been looking back at a reality which has materialised rather than having to assess chances in futuro. This in itself eliminates some of the risks which Courts often have to discount. However, quite apart from that, it is well established in other areas that the assessment of a chance at or near 100% can be permissible and appropriate. In Davies v Taylor [1974] AC 207 an issue in a fatal accident case was whether the widow, who had recently separated from the deceased at the date of his death, would have become reconciled with him but for the fatal accident. The speech of Lord Reid includes a well-known passage on the assessment of chances. It reads as follows (Page 213):

    "... here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the Law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100%: sometimes virtually nil. But often it is somewhere in between."

    When an Industrial Tribunal is looking back over a substantial period of time and assessing chances at different stages during that period, it must be the case that earlier and shorter periods calling for consideration are far more likely to attract a high or very high quantification of chance than longer or later periods. Take, for example, a dismissal by reason of pregnancy 15 years ago. When considering whether the woman in question would have availed herself of maternity leave had it been provided and would then have returned to service, an assessment of the chance at 100%, based on an assessment of all the evidence, would not strike us as exceptional or even unusual. At the other end of the scale, however, the assessment of the chance that she would have then proceeded to complete ten or twenty-two years further service as 100% would strike us as exceptional and unusual. But that does not necessarily mean that such an assessment must be perverse. There are exceptional and unusual cases in all areas of litigation. We have been told that about 5,000 women have made claims against the Ministry of Defence since it became known that dismissal by reason of pregnancy afforded them a cause of action. It would indeed be surprising if the retrospective assessment of chances in so many cases did not give rise to the utmost variety. One only has to contrast, by way of example, the evidence relating to Mrs Hunt and Mrs Anderson in the present batch of six appeals. Industrial Tribunal must consider all the evidence in the particular case with which they are dealing. Whilst the assessment of a long term chance at 100% is unusual and exceptional, in our judgment it is not perverse per se. An allegation of perversity will only succeed if it can be sustained upon the specific evidence in that case.

    (ii) Cumulative Chances

    The three questions required to be asked by Cannock will usually result in the differential quantification of chances. For example, an Industrial Tribunal, on the evidence in a particular case, may conclude that there was an 80% chance that a woman would have availed herself of maternity leave before returning to service but only a 40% chance that she would have proceeded to complete the full period of her engagement thereafter. In quantifying loss of earnings, this would require an Industrial Tribunal to apply the 80% figure to the first period. However, for the subsequent period the appropriate calculation would be cumulative, that is to say 40% of the 80% and not 40% of the original 100%. We shall see later how this issue has arisen in some of the present batch of appeals.

    (iii) Mitigation Perversity

    In several of the current appeals the Ministry of Defence has sought to criticise Industrial Tribunals for allegedly inappropriate findings in relation to the duty to mitigate loss. In some cases they have also argued that there has been a misdirection on the question of mitigation. We shall return to the question of misdirection in relation to each case in which it is alleged. However, it is appropriate that we should address the issue of mitigation perversity in general terms at this stage. The legal framework in this area is clear. A person who seeks compensation is under a duty to mitigate his loss. Mitigation is essentially a question of fact. The burden of proving a failure to mitigate is upon the person who asserts it, in this case the Ministry of Defence. However, those charged with the duty of finding the facts must not be too stringent in their expectations of an injured party. The words of Lord Macmillan in Banco de Portugal v Waterlow & Sons Limited [1932] AC 452, 506, are a useful guide:

    "Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticise the steps which have been taken to meet it, but such criticism does not come well for those who have themselves created the emergency. The Law is satisfied if the party placed in a difficult situation by reason of a breach of a duty owed to him has acted reasonably in the adoption of remedial measures and he will not be held disentitled to recover the costs of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken."

    A repeated scenario in the present cases is that, in her evidence to the Industrial Tribunal, an applicant has given an outline of her life since her dismissal, sometimes many years before the hearing. It has then been submitted on behalf of the Ministry of Defence that at certain stages of that history the woman in question has failed to mitigate her loss by reason of her acts and omissions in the labour market. In some cases the woman has been cross-examined about this aspect of her claim. In other cases such cross-examination appears to have been minimal or non-existent. We are told that more recently the Ministry of Defence has itself called evidence before the Industrial Tribunal so as to prove the kinds of employment which were available at particular times and in particular places, together with an indication of the remuneration which might have been obtained. However, a recurrent theme in some of the cases before us has been an absence of evidence adduced by the Ministry of Defence coupled with little or no cross-examination of the applicant herself on this issue. This has led some Tribunals to refuse to reduce the applicant's compensation by reference to a failure to mitigate. Since mitigation is ultimately a question of fact, each case on appeal must be considered separately. However, in our judgment and as a matter of general observation it lies uneasily in the mouth of the Ministry of Defence to criticise an Industrial Tribunal in a case where it has taken few if any steps in the presentation of its case to fill an evidential vacuum in respect of which it bears the burden of proof. On behalf of the Ministry of Defence Mr McManus has submitted that in such cases it is incumbent upon the Industrial Tribunal to fill the evidential vacuum itself. He suggests that as an industrial jury, an Industrial Tribunal is equipped for this task notwithstanding the fact that the alleged failure to mitigate may have spread over many different localities and over many years. We do not accept this submission. If a Tribunal is to be invited to consider whether or not there has been a failure to mitigate or, if there has been such a failure, the quantification of any reduction in the value of the claim, it must be provided with the evidence with which to perform its task, either arising from cross-examination or from evidence called by the Ministry. It seems to us that in some of the cases before us the refusal of the Industrial Tribunal to reduce the compensation by reference to a failure to mitigate arose from the way in which the Ministry chose to put its case before the Tribunal. A vague submission of failure to mitigate unsupported by any evidence is unlikely to succeed. Industrial Tribunals will have in mind the words of Browne-Wilkinson J (as he then was) in Gardener-Hill v Rowland Berger Technics Ltd [1982] IRLR 498, 500:

    "In order to show a failure to mitigate, it has to be shown that a particular step had been taken, Mr Gardener-Hill would, after a particular time, on balance of probabilities have gained employment; from then onward the loss flowing from the unfair dismissal would have been extinguished or reduced by his income from that other source. In fixing the amount to be deducted for failing to mitigate, it is necessary for the tribunal to identify what steps should have been taken; the date on which that step would have produced an alternative income and, thereafter, to reduce the amount of compensation by the amount of the alternative income which would have been earned. Since that is the principle of mitigation, a reduction of a percentage of a total sum representing compensation for the whole period is inappropriate."

    Mr McManus also submitted that in approaching mitigation the Industrial Tribunals and we should take into account the logistical difficulties facing the Ministry of Defence as a result of the numerous claims which have been made. This we decline to do. We appreciate that it is embarrassing for the Ministry of Defence to face so many claims at once. However, there is not and cannot be a different law for the Ministry of Defence. It is the admitted wrongdoer and if it seeks to reduce its liability to pay compensation by reference to a failure to mitigate it must discharge the burden the law places upon it in each case.

    (iv) Misdirection as to calculation of compensation

    We now turn to a more difficult point of law. In a case where the Industrial Tribunal has assessed the chance of completing a number of years service at less than 100% and has also found some failure to mitigate on the part of the applicant, the question that arises is whether in the final calculation of compensation the Tribunal should deduct the failure to mitigate figure before or after applying the percentage chance figure. The practical importance of this can be seen from a hypothetical example put forward by Miss Rose on behalf of Mrs Donald (reflecting an earlier submission made by Miss Simler on behalf of Mrs Wheeler). The hypothetical example is as follows:

    (a) A woman who earned 500.00 per week serving in the army is unlawfully discharged because of pregnancy.

    (b) After her discharge, she earns (or could earn, acting reasonably to mitigate her loss) 250.00 per week.

    (c) The Industrial Tribunal finds that, had she not been unlawfully discharged, there was a 40% chance that she would have remained in the Army.

    How, then, is the weekly loss to be calculated?

    The submission on behalf of the women is that the correct approach is to subtract 250.00 (actual earnings) from 500.00 (potential earnings in the Army) and take 40% of the result. This would produce a weekly loss of 100.00.

    The submission on behalf of the Ministry of Defence is that the correct approach is first to take 40% of 500.00, viz 200.00, and then to subtract from that the actual earnings of 250.00. This produces a negative weekly loss of -50.00.

    We are not the first division of the Employment Appeal Tribunal to have consider this question post Cannock. It was considered and decided in favour in the Ministry of Defence by this Appeal Tribunal with Tucker J presiding in Ministry of Defence v Bristow [unreported]. The transcript reads as follows (page 13):

    "In our opinion, the point at which discount should be applied is before the deduction is made for failure to mitigate which should be made in full and without a discount. We agree with the (Ministry's) submissions that mitigation is not a question of loss of a chance, but one of fact. The figure is definite where there has been mitigation in fact and can certainly be calculated where there has not been but should have been mitigation."

    Tucker J referred to two recent Industrial Tribunal decisions supporting the same approach and said:

    "We take the view that the position here is analogous to the situation which the Employment Appeal Tribunal had to consider in Derwent Coachworks v Kirby [1994] IRLR 639."

    A little later in the same passage Tucker J said:

    "We have no doubt that this is the position so far as the deduction for failure to mitigate is concerned. We leave open the question of whether the same applies to deductions of child care costs."

    Miss Rose and Miss Simler submit that we should not follow Bristow.

    In order to decide this point it is first necessary to consider the Derwent Coaches case. It was an earlier decision of this Tribunal again presided over by Tucker J. There the dispute was about the order in which a 50% finding of contributory fault and the deduction of a payment in lieu of notice should be calculated in an unfair dismissal case. Tucker J stated (at page 641):

    "In our opinion our approach to the problem should be based upon logic and principle.

    1. Logic Since the purpose of the exercise is to assess the loss attributable to the employers' conduct (Section 74(1)) we should, when considering the loss incurred, as a matter of logic deduct the element of contributory fault at that stage, before taking account of the payments paid, because the fault was not caused by the employers conduct.

    2. Principle The statute itself Section 74(1) instructs the Industrial Tribunal to award by way of compensation an amount which is considered just and equitable that means just and equitable to each party. It would not be just or equitable to an employer if the value of any payment he had made were to be reduced, not because of his conduct but by reason of the employees conduct.

    The general principle is that the purpose of the exercise should be to award full compensation but not award a bonus. So if an approach has the affect of awarding a bonus, that must be inconsistent with the general principle. ... In our opinion the principle is, or ought to be, that full credit should be given for payment made by employers."

    This was a reserved decision given after a consideration of previous apparently conflicting authorities. One of the earlier decisions expressly approved by Tucker J in Derwent Coachworks was Clement-Clarke International Limited v Manley [1979] ICR 74. In that case this Appeal Tribunal was presided over by Kilner-Brown J. The head note reads:

    "Where an employee had by his conduct contributed to his own dismissal, payments made by the employer should be taken into credit after the nett amount had been calculated and proportionately reduced to take account of the employees contribution to his dismissal and as not as part of the nett calculations."

    The important part of the short judgment reads as follows (page 76):

    "They (i.e. the Industrial Tribunal) correctly began by assessing the basic award and reduced that by half in view of the degree of contributory conduct. Then again, correctly, they proceeded to assess the compensatory award to take into account appropriate payments received, and to apply the 50% contribution. They arrived at a figure of 32 weeks nett pay. From that they deducted the appropriate figures for actual and estimated unemployment and supplementary benefits. So far so good. But the employers paid no less than 554.68 direct to the employee expressed to be in lieu of notice. Understandably enough the Industrial Tribunal gave credit and deducted this from the full entitlement. They added up the receipts and halved them before arriving at the nett amount due. The short point taken here is that by doing it in this way they deprived the employer of half of his payment. Obviously this must be wrong. It means that the employer is being penalised when the employee by his conduct has contributed to the dismissal and that an employer who has to compensate an employee who is free from blame gets full credit for any payments he may have made. At one time in our deliberations we were minded to conclude that as a point of principle there might be a distinction between a payment made entirely ex-gratia compared with a payment made in recognition of a contractual entitlement. But this would not deal with the anomalous position that an employer is worse off where the employee has been in part to blame for his dismissal. In order to avoid unnecessary investigation as to the precise category to which the employers' payments should be put it would be simpler and fairer in our view if the employers payment is taken into credit after the nett amount has been calculated and proportionately reduced and not as part of the nett calculations."

    Although Clement Clark International was carefully considered in Derwent Coaches and was therefore indirectly before this Tribunal in Bristow, Miss Rose submits that there is another line of authority which does not seem to have been referred to in argument in Bristow. Mr McManus was Counsel for the Ministry of Defence in Bristow and he does not dispute that this other line of authority was unmentioned in that case. The line of authority is that which concluded in Polkey v A E Dayton Services Limited [1987] IRLR 503 (House of Lords) and which was concerned with compensation for unfair dismissal in cases where a dismissal which was unfair by reason of procedural unfairness was in other respects justifiable. In Sillifant v Powell Duffryn Timber Limited [1983] IRLR 91 Browne-Wilkinson J (as he then was) stated (at page 96):

    "There is no need for an "all of nothing" decision. If the Industrial Tribunal thinks that there is doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment."

    Miss Rose submits that this is authority favouring the application of the percentage discount at the later rather than at the earlier stage. She further points out that this passage in Sillifant was expressly approved by the House of Lords in Polkey: see the speech of Lord Bridge of Harwich at page 508. She contend that Bristow was decided per incuriam because this Appeal Tribunal was not referred to the latter line of authority. Whether or not Bristow can be said to have been decided per incuriam it is apparent that we have had the benefit of far fuller submissions on this issue than our colleagues in Bristow had.

    In addition to the line of authority culminating in Polkey, Miss Rose also submits that the Ministry's approach is inconsistent with that applied in personal injury and fatal accident cases as illustrated by Davies v Taylor (Supra) in which Lord Reid stated:

    "In each case the Tribunal would determine what its award would have been if the spouses had been living together when the husband was killed, and then [our emphasis] discount it or scale it down to take account of the probability of her not returning to him."(Page 212)

    See also the speech of Lord Simon of Glazedale at page 220.

    Miss Rose expressly submits that she is not criticising Derwent Coaches as a case concerning the appropriate calculation where there are findings of contributory fault and a payment by the employer himself. Her submission is that Derwent Coaches is not a proper analogy for our purposes; that it ought not to have been relied upon in Bristow; that this Appeal Tribunal in Bristow was denied full submissions; and that the approach of the Ministry which found favour in Bristow offends reason and justice.

    Mr McManus relies heavily on Derwent Coaches and Bristow. When we asked him if the Ministry viewed with equanimity an analysis such as these authorities would produce if applied to Miss Rose's hypothetical example, he answered affirmatively. His submission is that all this logically flows in cases where there is found to be a percentage chance of less than 100%.

    Although we are not bound by previous decisions of this Appeal Tribunal, we would not depart from one except after the most careful consideration. With due respect to the constitution of this Tribunal in Bristow we are satisfied that we have received far fuller submissions on this matter than our colleagues did in that case. We do not share the equanimity of the Ministry of Defence to which we have just referred. In our judgment, its approach to the issue is potentially productive of injustice. We are also mindful of the fact that in Marshall v Southampton and South West Hampshire Health Authority (Teaching No. 2) [1993] ICR 893, 932, the European Court of Justice specifically stated of compensation for a discriminatory dismissal that:

    "It must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with applicable national rules."

    It seems to us that if the law were as submitted on behalf of the Ministry of Defence on this issue it would fall short of providing "full compensation". Accordingly, in our judgment the percentage should be applied after and not before the subtraction of the mitigation earnings.

    (v) "Excessive" awards

    In addition to attacking individual elements of Industrial Tribunal decisions on compensation, the Ministry of Defence has in some cases sought to argue that, as a matter of law, the totality of an award is "excessive". The Ministry seeks to justify this approach by reference to passages in Cannock. One such passage concludes (page 929):

    "It would not be a fair comparison to make to equate the compensation in these cases with amounts awarded for personal injuries nor would the total award to a victim of an accident."

    Having discouraged a comparison with personal injury cases Morison J later encouraged comparison with general unfair dismissal cases, in the following terms (pages 955-956):

    "... their compensation for loss of earnings is not likely to be different than the thousands of cases of unfair dismissal with which the Industrial Tribunals are having to deal with each year, albeit that there is no cap on the award."

    Then, in the context of "General Guidance", Morison J stated (page 950):

    "We suggest that tribunals do not simply make calculations on various heads, and then add them up and award the total sum. A sense of due proportion involves looking at the individual components of any award and then looking at the total to make sure that the total award seems a sensible and just reflection of the chances which have been assessed."

    Cannock was decided at a time when there was widespread concern about publicity given to widely fluctuating awards. Its purpose was to lay down guidelines in order to encourage consistency. It is a case of enormous importance and we pay our tribute to what was by any standards a judicial `tour de force'. However, guidelines are simply that. They do not become self-executing and they do not relieve Industrial Tribunals of the task of determining each case individually in accordance with the evidence adduced. The guidelines ought to enable Industrial Tribunals to produce substantially similar awards in substantially similar cases. It seems to us, however, that the sheer number and variety of pending cases is still bound to produce a fairly wide range of awards. One only has to look at the evidence in the six cases before us to appreciate this. The cases of Mrs Hunt and Mrs Anderson, for example, are substantially dissimilar and it should surprise no one that they attract dissimilar awards. In an area in which there is no statutory cap on awards, it would be surprising if highly dissimilar cases were all to be encompassed within a narrow band of quantum. The Ministry of Defence has been anxious to inform us that the average Industrial Tribunal award since Cannock was reported has been 15,060.00. We have seen no breakdown of this figure and it is one which the other parties have declined to agree because they have no access to the data. In any event, an average figure tends to conceal as much as it discloses when it is put forward simply as a raw average. We do not feel assisted by it. It seems to us to be inevitable that there will continue to be awards both considerably lower and substantially higher than 15,000.00.

    There is one aspect of Cannock the interpretation of which has caused us concern. It is the passage quoted above containing the suggestion that tribunals "do not simply make calculations under various different heads and then add them up and award the total sum" (page 950). It seems to us that if a tribunal has given proper consideration to the evidence before it and to the Cannock guidelines and has determined that an applicant is entitled to X in respect of injury to feelings, Y in respect of loss of earnings and Z in respect of loss of pension entitlement, she is prima facie entitled to an award of not less than X + Y + Z and appropriate interest. We do not consider that the constitution of this Appeal Tribunal which decided Cannock can have intended otherwise. If they did intend otherwise, we respectfully disagree with them. In this context it is important to recall the words of the European Court of Justice in Marshall (No.2) (Supra) at page 932, to which we have referred. It seems to us that a general approach which required reconsideration of the figure produced by aggregating the constituent heads of damage would be to introduce a judicial cap in an area where there is no statutory cap and would be contrary to Marshall (No.2).

    Finally, in relation "excessive" awards, we feel that it is appropriate to refer to three factors which have an inherent tendency to produce substantial figures in some cases. First, pay levels in the Armed Forces are relatively high and pension provision is virtually unparalleled. Secondly, some of the women had achieved considerable seniority prior to their discharge. Thirdly, the lapse of time since discharge contains within it factors which may be productive of a high award. Interest may fall to be awarded in respect of a substantial period of time. The suggestion on behalf of the Ministry of Defence that this in itself ought to diminish the sums upon which the interest is payable seems to us to be misconceived. Moreover, in a case where an Industrial Tribunal finds a high percentage chance that the woman would have returned after maternity leave and served out her engagement over a long period and further finds that she has not failed to mitigate her loss in the meantime, there are in-built factors which will have a tendency productive of a higher award. Of course, if she has been able to mitigate her loss by obtaining and retaining equally well paid work, the consequences will be less significant.

    Having made these general observations, it is necessary that we now turn to the six individual appeals.


     

    APPEARANCES

    For the Appellants MR J R McMANUS

    (of Counsel)

    The Treasury Solicitor

    Room 449

    Lacon House

    Theobalds Road

    London WC1X 8RY

    For the Respondent MR R ALLEN Q.C.

    Miss D King

    Hillingdon Legal Resource Centre

    12 Harold Avenue

    Hayes

    Middlesex

    (1). THE MINISTRY OF DEFENCE V SHARON HUNT

    Mrs Hunt was born on 16th October 1957. She joined the Women's Royal Army Corps on a short service commission in September 1976. She was promoted from second lieutenant to lieutenant in April 1979. In 1980 she was promoted to acting captain. In March 1981 she became pregnant. She knew that she would have to leave the army unless she had an abortion. Her military career was very important to her and so she did have an abortion rather than face discharge from the Army at that stage. A few months later she married. Her husband was also in the Army. She became pregnant again in 1982 as a result of which she was discharged from the Army on 12th August 1982. Her first child was born in November 1982; a second child followed on 24th February 1984; she resumed full-time employment on 1st May 1987. Her husband left the Army in 1988 and in more recent times Mrs Hunt has been the main bread winner for the family.

    Her claim was determined by the Industrial Tribunal at London (South). The tribunal found that, had maternity leave been available, there was no chance at all that Mrs Hunt would have left the Army after the birth of either child. It further found that there was 100% chance that she would have continued in the Army for a sixteen year term and would have obtained significant promotions during that time. In paragraph 41 of the decision the Tribunal concluded:

    "The correct way to calculate the award is to determine what pay Mrs Hunt would have earned had she been at work from the date of discharge to the expiry of the sixteen year term with the appropriate increases for the promotions and then to make appropriate deductions for child care costs and then to deduct what she has, in fact, earned after deductions of any child minding costs. Pension loss should be added."

    Before us the Ministry has sought to pursue five of its original grounds of appeal and has sought leave to amend its Notice of Appeal to include two further grounds.

    It is a matter of record that the Chairman of the Tribunal in this case was the same Regional Chairman as in the cases of Bristow (supra) and Mrs Wheeler (infra). As we have indicated, the Ministry of Defence has sought to attach some significance to this fact. Whilst insisting that it is not alleging bad faith, the Ministry, through Mr McManus, has sought to characterise the Tribunal's approach in these three cases as being in "defiance" of the Cannock guidelines. We reiterate our rejection of this submission.

    We turn now to the points raised in the appeal.

    (a) 100% chance of return after maternity leave

    The Ministry referred to the first two questions in Cannock, namely would Mrs Hunt have returned and would she have been able to return. The Tribunal concluded (paragraph 31) that:

    "There was no chance at all that she would have left the Army after the birth of either child had maternity leave been available to her and had she been free to continue her successful military career."

    When considering the next ground of appeal we shall refer to the qualities of Mrs Hunt in more detail. We have already indicated in our general observations that there is nothing inherently perverse about a 100% chance assessment. Indeed, the 100% chance assessment by the Tribunal in Bristow survived scrutiny in the Employment Appeal Tribunal. We shall refer again to the statistical evidence adduced by the Ministry of Defence. At this stage and in relation to this first ground of appeal we simply state that, in our judgment, there was ample evidence upon which it was open to the Tribunal to assess the chances of return after both children at 100%. The Ministry have contended that such a conclusion was perverse in the light of both the statistical evidence and the Tribunal's own findings about what happened in fact after the children were born. It is suggested that the statistical evidence was a more reliable indicator than Mrs Hunt's own evidence as to her intentions. In our judgment these were all matters for the Tribunal. It is clear that Mrs Hunt made a most favourable impression upon the Tribunal. It is also apparent that the Tribunal (paragraph 14) did not consider the Ministry's statistics to be of great assistance in this case, not least because the witness produced to explain and answer for them could not deal with basic enquiries about them. We are satisfied that the 100% assessment of the chances of return was a finding open to the Tribunal and that it was not perverse or otherwise erroneous.

    (b) 100% chance of sixteen years service

    The submission on behalf of the Ministry of Defence is that this finding was perverse by reference to the statistical evidence and also to Mrs Hunt's own circumstances.

    So far as the statistical evidence is concerned, we are satisfied that it was considered by the Tribunal. As we have indicated it is apparent that the Tribunal did not find it worthy of much weight in this case. They were entitled to come to that conclusion. We do accept that only an unusual and exceptional case could justify the assessment of a chance at 100% in relation to a sixteen year period. However, there was material upon which the Tribunal was justified in treating Mrs Hunt as an unusual and exceptional applicant. She came from a military family. Her career in the Army prior to discharge was very successful. The Tribunal observed (paragraph 3) that she:

    "... had as a role model a mother who worked outside the home constantly, we accept she regarded that as the norm."

    Her promotion to acting captain one year after promotion to lieutenant was exceptional. She had a wide range of personal qualities which received repeated approbation and confirmation in Army reports. The Tribunal considered her to be:

    "A natural career woman who had no reserve about employing a nanny to look after her children."

    Indeed, it was her determination to work which caused her husband to leave the Army in 1988 and which has since resulted in her becoming the main breadwinner (paragraph 10). Clearly the decision to have an abortion rather than leave the Army in 1981 was a factor which affected the Tribunal's assessment of her career minded determination. We have not referred to all the details of evidence rehearsed in the forty-one paragraph decision of the Industrial Tribunal. Suffice it to say that, in our judgment, the Tribunal was justified in coming to its unusual and exceptional conclusion that there was a 100% chance of completion of sixteen years service.

    Mr McManus sought to distinguish Bristow where, he says, the 100% finding only survived scrutiny in the Appeal Tribunal because the Ministry of Defence had not called a witness to justify its statistics. In our judgment, there is little difference between a case in which no witness is called to justify these statistics and a case, such as the present one, in which a witness is called but is unable to answer elementary questions about those statistics. In Cannock, Morison J referred to the statistical evidence as being:

    "Likely to be a good starting point"

    The actual weight to be attached to them in any particular case is a matter for the Industrial Tribunal. For our part, having heard a number of these appeals, we have formed a view that the statistics contain severe limitations and it does not surprise us that Industrial Tribunals sometimes appear to afford them little weight when considering the entirety of the evidence in a case.

    In this, as in some other appeals, the Ministry of Defence seeks to emphasise inconsistencies and/or deficiencies in the woman's employment pattern during the period after discharge from the Army. However, just because a woman who has been discharged from the Army has remained out of full-time employment for a period following the birth of her child or children, it does not follow that she would have been less than fully committed to the Army if she had been permitted to remain in it during that same period. Once again, this is a matter for the Industrial Tribunal to assess in each case. In Mrs Hunt's case, there was ample evidence to justify the Tribunal's conclusion as to her determination and career mindedness in relation to the Army.

    In any case, an Industrial Tribunal will have regard to the possibility that an applicant's evidence taking a retrospective overview of a number of years may be intentionally or unintentionally distorted by being self-serving. We have no reason to suppose that this Tribunal did not have this possibility in mind. What is abundantly clear is that the Tribunal formed a favourable impression of Mrs Hunt's evidence and were entitled to do so.

    In all the circumstances we do not consider that the Ministry has established perversity in respect of this finding.

    (c) Promotion prospects

    Paragraph 33 of the decision is in the following terms:

    "On the Ministry of Defence evidence, Mrs Hunt could not have reached the rank of substantive Major before the age of 32, that is before 16th October 1989. In our judgment, on the evidence of her performance and assessments, she would have reached the rank of acting major by 16 October 1985 and a substantive rank by 16 October 1989. We find that she would have had no further promotion because she would have completed 16 years service before she attained the age of 37 when she would have been eligible for promotion to Lt. Colonel."

    The Ministry's criticism of this part of the decision is firstly that it is tantamount to a finding of fact rather than the assessment of a chance, contrary to Cannock (page 953). We are satisfied that the approach of the Tribunal in relation to promotion did include an assessment of chances. Paragraph 33 has to be read together with paragraph 30 in which the Tribunal stated:

    "We have also asked ourselves what is the chance that she would have extended her short-service commission to eight years and then applied and been granted a regular commission or a special regular commission up to 1988 ... We have assessed Mrs Hunt's chances of promotion. "

    In the circumstances, we consider that paragraph 33 is a further assessment of a 100% chance rather than a finding of fact. Once again, we consider the assessment at 100% to be unusual and exceptional. However, it seems to us to have been an assessment reached after a consideration of all the evidence, including the statistical evidence, and in our judgment it is an assessment which the Tribunal was entitled to make.

    (d) Interest

    The basis of this ground of appeal is that the Ministry of Defence contend that the Tribunal's award of interest (paragraph 38 of the decision) has been incorrectly calculated in the light of the Sex Discrimination and Equal Pay (Remedies) Regulations 1993. Mr Allan Q.C., on behalf of Mrs Hunt accepts that this is so. We do not need to go into detail on this issue. The Ministry's appeal will be allowed and the matter will be remitted to the same Tribunal for further submissions and redetermination of the claim for interest.

    (e) "Excessive" award

    Relying on the passages in Cannock to which we referred in our general observations, Mr McManus submits that the award in this case in manifestly excessive and lacks a due sense of proportion. One difficulty about such a submission is that the decision of the Industrial Tribunal does not include a quantification of the award. The Ministry suggests that, on the basis of the Tribunal's findings, the award is "likely to be in excess of 150,000". We are not convinced that this is so. We observe that Mrs Hunt has been in well paid employment for eight years and that she obtains commission, a company car and fringe benefits in addition to a salary of 23,000 per annum. This mitigation of her loss will have to quantified as appropriate and brought into account in the final calculation. We repeat our observations about "excessive" awards made earlier in this judgment. It seems to us that the unusual and exceptional circumstances of this case were bound to produce a high award in any event. We do think that there is anything in this ground of appeal.

    (f) Misdirection on mitigation

    In dealing with the duty to mitigate in paragraph 20 of the its decision, the Industrial Tribunal stated:

    "The approach in the employment field is where an employer by his unlawful discrimination has put an employee in the position of having to seek new employment in a difficult market or in the circumstances where he or she is disadvantaged in the eyes of that market (whether by reason of having a baby to care for or because of age or for some other problem) the steps which the employee takes to mitigate his or her loss are not to be weighed too precisely at the instance of the employer."

    The Tribunal was there applying the words of Lord MacMillan in the Banco de Portugal case (supra) to the present circumstances. The Ministry of Defence submits that the reference to "the disadvantage of having a baby to care for" contains a gender based assumption, namely that the applicant, being a woman, had to stay at home and look after the child. The Tribunal in Bristow included the same words in its decision. In the Employment Appeal Tribunal Tucker J stated (page 12F of the transcript):

    "We think the Industrial Tribunal were wrong in law to refer to the disadvantages of having a child to care for."

    This ground of appeal is not referred to in the Notice of Appeal. Mr McManus seeks leave to amend so as to include it. Mr Allan Q.C. objects to such a course. We shall grant leave to amend. Having done so, however, we have to say that we do not consider that there is any merit in the Ministry's submission. To the extent that we are taking a different view from that expressed by our colleagues in Bristow, it is incumbent upon us to explain why. If we considered that the words in paragraph 20 of the decision were an example of the Tribunal making a gender based assumption to support its decision, we would take the same view as did our colleague in Bristow. However, it seems to us that the words in paragraph 20 are not an example of the Tribunal making a gender based assumption in the sense of finding that it was for the woman to stay at home. All the words do is acknowledge that at the time in question, and notwithstanding the legislation, there was a disadvantage in the labour market in being a woman with a young child or children. This seems to us to be no more and no less than the Tribunal acting as "industrial jury" and applying collective common sense to historical circumstances.

    (g) Perversity on mitigation

    Again, this is not a point raised in the original Notice of Appeal. Leave is sought for an amendment and, notwithstanding the objection put forward on behalf of Mrs Hunt, we propose to grant leave for the amendment.

    The Ministry of Defence asserted that Mrs Hunt had failed to mitigate her loss. The Tribunal dealt with this assertion at various parts of its decision. In paragraph 7 it referred to the fact that Mrs Hunt made a rapid recovery and was fit and well very soon after the birth of her first child. Mr and Mrs Hunt moved house about two months after that birth. Mrs Hunt signed on for unemployment benefit at the local office and looked for a full-time job. She had a full-time live-in nanny. The Tribunal found that she used all the normal methods of jobs search and accepted her evidence that the Job Centre had told her that her search was unlikely to be successful because employers would know that she was a married woman with a child who would move on if and when her husband was posted. There were apparently a number of ex-army women available for work in the area. Paragraph 7 concludes:

    "Mrs Hunt did not apply for the Civil Service or a civilian job with the Ministry of Defence. We have no evidence that were such jobs available. Mrs Hunt was unsuccessful in her search for a job. The Secretary of State has adduced no evidence to show that Mrs Hunt could have found a job if she had tried harder or of what she could have earned. We therefore make no findings about it."

    Returning to the question of mitigation in paragraph 34 the Tribunal stated:

    "In our judgment any damages awarded to Mrs Hunt should not be reduced to reflect any failure to mitigate her loss. ... The Secretary of State has adduced no evidence that Mrs Hunt could have obtained a job if she had tried harder or of what salary she could have earned had she tried. In those circumstances we make no deduction."

    Mr McManus submits that this approach was perverse. Notwithstanding the evidential vacuum he submits that the Tribunal as an industrial jury, was entitled to fill in gaps in the evidence on the basis of its own experience and that it should have done so. He refers to Dugdale v Kraft Foods Limited [1977] ICR 48 and particularly to the final paragraph in the judgment at 54-55 concerning the use by a Tribunal of its knowledge and experience to fill gaps in the evidence "about matters which will be obvious to them". It seems to us to be a bizarre suggestion that a Tribunal sitting in South London in 1994 should apply its knowledge and experience to fill in gaps in evidence in relation to Mrs Hunt's employment history in Wiltshire a decade and more before. We repeat here what we said earlier in this judgment when making general observations about the burden of proof and evidence in relation to an assertion of failure to mitigate loss. In our judgment there is nothing in this ground of appeal. Nor is it advanced by the finding that Mrs Hunt did not have a full-time job for about 41/2 years after the birth of her first child. The Tribunal found and was entitled to find that the Ministry of Defence had not proved a failure on her part to take reasonable steps to mitigate her loss.

    It follows from the foregoing that in relation to grounds (a), (b), (c) (e), (f) and (g) the Ministry's appeal fails. In relation to ground (d), the interest point, it succeeds and will result in the remission to which we have referred.


     

    APPEARANCES

    For the Appellants MR J R McMANUS

    (of Counsel)

    The Treasury Solicitor

    Room 449

    Lacon House

    Theobalds Road

    London WC1X 8RY

    For the Respondent MS I SIMLAR

    (of Counsel)

    Messrs Fuglers

    70 Charlotte Street

    London WC1X 8RY

    (2) MINISTRY OF DEFENCE V MRS D J WHEELER

    Mrs Wheeler was born on 19th March 1959. When she was aged seventeen she joined the Women's Royal Army Corps on a 22 year engagement. That was on 6th April 1976. In September 1977 she was promoted to lance corporal and in July 1979 to acting corporal. In February 1980 she had an unpleasant experience in the Army which caused her to give notice of intention to leave. However, she was persuaded by her commanding officer to reconsider her position. In May 1980 she was posted to Germany and her contentment with Army life returned. She was encouraged by being told that she was a high flyer and had good prospects. She later withdrew her notice of intention to leave. In November 1981 she married a fellow soldier. In 1984 she became an acting sergeant and was recommended for promotion to sergeant. However, she was discharged by reason of her pregnancy on 28th June 1985. Her first child was born on 3rd September 1985 and a second child followed on 23rd March 1987. At that time Mr and Mrs Wheeler were living at Brize Norton. From 1987 until 1990 they lived in Dortmund where Mr Wheeler was posted and from 1990 to 1992 they were in Munster. They then returned to England. Mrs Wheeler found that after her discharge from the Army in 1985 her special WRAC skills were not readily transferable to civilian life. She was not able to drive a car at that time. However she did undertake various short-term courses. She was ready to return to work by the end of 1985 and she signed on for unemployment benefit and registered with the Job Centre at Whitney. She could not find suitable employment. The Tribunal accepted that she made more applications than she can now specifically remember and also that local employers were reluctant to take on and train the wives of servicemen because of the likelihood of their leaving to follow their husbands on postings. The Tribunal accepted that Mrs Wheeler looked for jobs from the end of 1985 until the beginning of 1987 when she was due to give birth to her second child. When the family moved to Dortmund in May 1987 Mrs Wheeler thought she may be able to find a job there but this did not materialise. She made an enquiry about re-enlisting in the Army but was rebuffed. She enroled on an Open University course and made some money as a make-up representative. Other possible forms of employment were so low paid as to be worth less than a cost of a child minder. Following the move to Munster in 1990 Mrs Wheeler obtained full-time clerical employment.

    Mrs Wheeler's claim was determined by the Industrial Tribunal at London (South) presided over by the same Regional Chairman as in Bristow and the case of Mrs Hunt. On this occasion the Tribunal assessed the chance of Mrs Wheeler having returned after maternity leave for her first child, if it had been available, as 100%. That assessment of a 100% chance was carried through to a point six months after the birth of the second child. However, the assessment of the chance of her returning to work at that stage was reduced to 85% and the chance she would have proceeded the complete 22 years service was assessed at 20%.

    The Ministry of Defence seeks to raise seven points of appeal before us and Mrs Wheeler cross-appeals in relation to one matter.

    (a) 100% chance of return assessment

    The tribunal dealt with this in paragraph 36 of its decision in the following terms:

    "It seems to us, taking into account Mrs Wheeler's financial situation at the time of discharge; the fact that she had completed nine years on 5th April 1985 and was very near her promotion to Sergeant; the fact that she made efforts to discover whether she would be permitted to stay on and the fact that she was better looking for a job very shortly after the birth of the first child, there was no chance at all that t she would not have returned to the Army after taking maternity leave for that first child."

    The submissions made by Mr McManus in respect of this ground are similar to those made in relation to the equivalent ground in the Hunt appeal. It is true that paragraph 36 contains no reference to the statistical evidence. However, it is apparent from paragraph 21 of the decision that the Tribunal did take account of the statistical evidence. It concluded:

    "We bear in mind that statistics of that kind only take us some of the way because we have to consider the chance that this woman would have been amongst the persons who stayed."

    Mr McManus suggests that this passage contains a clear error of law in that it is indicative of a "pool" approach. We disagree. In our judgment this passage indicates that the statistics were taken into account, that the Tribunal concluded that they only took it "some of the way"; and that the Tribunal proceeded to assess the chance on the basis of the whole of the evidence. In paragraph 35 the Tribunal stated:

    "We have looked very carefully at what she actually did after discharge ... In making our assessment, we have also borne in mind all the circumstances including, particularly, the incentives Mrs Wheeler would have had for staying in, balanced against the incentives for leaving."

    We are satisfied that, having regard to all the evidence in this case, it was open to the Tribunal to make this 100% assessment.

    (b) The subsequent assessment of the chance of continuing in the Army at 100% and 85%

    We refer again to the passages from the decision which we have just quoted. This was a case in which the Ministry of Defence mounted a vigorous attack on the integrity and truthfulness of Mrs Wheeler as a witness (paragraph 2 of the decision). The Tribunal was not impressed with that attack. It accepted most of her evidence. The evidence pointed to her being a high flyer with good prospects. Again, the fact that her employment pattern was interrupted following her discharge does not necessarily mean that it would have been so interrupted if there had been no discharge. In our judgment the assessment of all the evidence was careful and the Tribunal was entitled to assess the chances at 100% and 85%. The matter of the weight to be given to different parts of the evidence, including the statistical evidence, was a matter for the Tribunal. We do not consider its conclusions to have been perverse.

    (c) Misdirection on mitigation

    Paragraph 26 of the decision contains a passage in substantially the same terms as paragraph 20 of the decision in Hunt. The Ministry of Defence again seek leave to include an additional ground of appeal by reference to it. In spite of objection we have seen fit to grant leave. The issue raised is precisely the same as in Hunt. Once again, we do not consider the point advanced on behalf of the Ministry of Defence to be well-founded. In our judgment this was not a case of the Tribunal making a gender based assumption but of the Tribunal using its experience to come to the conclusion that at the material time it was common for employers to make a gender based assumption. There is nothing in this ground of appeal.

    (d) Perversity in relation to mitigation

    We have already summarised the evidence concerning Mrs Wheeler's employment pattern following her discharge. It is true that in relation to a relatively short period soon after her discharge (paragraph 12 of the decision), Mrs Wheeler accepted in cross-examination that there was at that time a range of available clerical jobs in the Oxford area, a 20 to 30 minute bus ride away from the RAF base where she and her husband were living. There was no further evidence about these jobs or about salaries. Returning to the question of mitigation in paragraph 43 of its decision, the Tribunal stated:

    "In this case the Secretary of State has adduced no evidence on the basis of which we can arrive at any figure by which Mrs Wheeler's damages should be reduced to reflect a failure to mitigate her loss. However, we have regard to the Gardiner-Hill case ... and therefore, although Mrs Wheeler may have failed to make sufficient effort to mitigate her loss, we make no finding about it."

    Once again, the Ministry of Defence contends that the Tribunal ought to have used its own experience to fill in the gaps in the evidence. Having regard to the totality of the evidence, the burden of proof in respect of an alleged failure to mitigate and the passage in the Gardiner-Hill case to which we have referred earlier in this judgment, we are satisfied that it was not perverse of the Tribunal to decline to use its experience to fill in gaps in the evidence concerning employment opportunities and salaries in Oxford and elsewhere 10 years ago. In our judgment the Tribunal was entitled to come the decision it reached on the issue of mitigation.

    (e) Double counting

    In paragraph 46 of the Decision the Tribunal expressed its award to be 100% of lost earnings up to a date six months after the birth of the second child. It then refers to 85% of earnings up to the end of September 1987 "(six months after the birth of the second child)". It is obvious that the first of these two references to "the second child" was erroneous and inadvertent. It should have been a reference to the first child. This point is conceded by Miss Simler on behalf of Mrs Wheeler. By itself, this would have been a matter for requesting a review of the Tribunal decision rather than pursuing an appeal. However, it has come to us as a part of a much wider appeal and on this point the appeal succeeds.

    (f) Cumulative chances

    In paragraph 46 of the Decision the Tribunal sets out the principles to be applied to the calculation of compensation. It refers to a period of 100% of Army earnings, followed by a period of 85% of such earnings, and a subsequent period of 20% of those earnings. Mr McManus submits that this amounts to a misdirection in law by failing to assess Mrs Wheeler's chance of completion from six months after the birth of the second child to the end of 22 years by multiplying percentage chances cumulatively. He submits that the Tribunal ought to have awarded the respondent 17% of her lost earnings for that final period, viz 85% of 20%. Miss Simler seeks to deal with this submission by contending that there is no error of law or misdirection. She submits that the Tribunal made an overall assessment of the relevant chances and made findings of fact which justify the final figures of 85% and 20%. In our judgment, it is clear from the wording of paragraph 46 that the Tribunal was contemplating the application of different percentage figures at different stages but to the same base earnings figure. There is nothing on the face of the decision to suggest that the Tribunal was giving discounted figures which took into account the effect of cumulative chances. In our judgment the submission on behalf of the Ministry of Defence on this issue is correct and its appeal on this point will be allowed. The consequences are purely arithmetical and do not necessitate a remission to the Industrial Tribunal.

    (g) Misdirection on calculation

    We referred in our general observations at the beginning of this judgment to the dispute as to the calculation process in a case where the Tribunal has to take into account mitigation earnings and the assessment of a chance of completing service which is less that 100%. This is an important legal point and we have sought to analyze the authorities and declare our view of the law in that earlier passage when dealing the Derwent Coaches case and its application in Bristow. In the present appeal the Ministry of Defence seeks leave to amend its Notice of Appeal so as to raise this issue in relation to Mrs Wheeler's case. Notwithstanding objection, we grant leave for that amendment. However, it will be apparent from the earlier passage in this judgment that our conclusion is that the submission made on behalf of the Ministry of Defence is incorrect and that we respectfully differ from the view that was taken by this Appeal Tribunal in Bristow. In the circumstances this ground of appeal fails.

    (h) Pension loss

    Mrs Wheeler raises a point by way of cross-appeal relating to the Tribunal's findings in respect of pension loss. Having decided that loss of pension rights should be calculated in accordance with the Industrial Tribunal's booklet "Compensation for Loss of Pension Rights", the Tribunal asserted that the basis of an employers' contribution of 21% of final salary was appropriate. The submission made on behalf of Mrs Wheeler is that the 21% figure should be enhanced by an additional factor to compensate Mrs Wheeler for the fact that 21% per annum had not actually been invested in a fund for the period between the date of discharge and the date of hearing. Apparently the Ministry of Defence has conceded in a number of other cases that it is appropriate to apply an enhancement factor to the contribution rate. Mr McManus was instructed to make a similar concession here. He does not seek to resist Mrs Wheeler's cross-appeal and agreement has been reached to include an enhancement factor of 1.096282. Accordingly the cross-appeal is allowed, the said enhancement figure is to be added to the finding in paragraph 40 of the Decision and no remission to the Tribunal is necessary.

    It follows from the foregoing that the Ministry's appeals under paragraph (a), (b), (c), (d), and (g) are dismissed. Its appeals in relation to paragraphs (e) and (f) are allowed and the cross-appeal in relation to pension loss is allowed.


     

    APPEARANCES

    For the Appellants MR J R McMANUS

    (of Counsel)

    Treasury Solicitors

    Room 449

    Lacon House

    Theobalds Road

    London WC1X 8RY

    For the Respondent MR PATRICK ELIAS Q.C.

    and MS SUSAN L BELGRAVE

    (of Counsel)

    Mr E Coppinger

    Hounslow Law Centre

    51 Lampton Road

    Hounslow

    Middlesex

    TW3 1JG

    (3) MINISTRY OF DEFENCE V MRS S GEORGE

    Mrs George was born on 2nd September 1958. On 3rd September 1976 she joined the Women's Royal Army Corps on a 22 year engagement. She was bandswomen. In August 1981 she married a fellow Army musician. Three months later she discovered that she was pregnant. She was very anxious to stay in the Army and asked for advice about an abortion. However, she was persuaded to continue the pregnancy. On 10th February 1982 she was discharged by reason of the pregnancy. Her first child was born in July 1982, by which time she was living in Germany to which country her husband had been posted. In December 1984 they moved from Germany to Chester. Mrs George gave birth to her second child on 13th November 1985. In January 1988 they moved to Berlin in pursuit of Mr George's latest Army posting. Subsequent postings took them to Northern Ireland in February 1990 and Hounslow in February 1992.

    Her application for compensation came before the Industrial Tribunal at London (South), where the Tribunal was chaired by Professor R W Rideout. The Tribunal came to the conclusion that Mrs George would certainly have returned to work after the birth of her first child if there had been provision for maternity leave. So far as the remainder of her 22 year engagement was concerned, a majority of the Tribunal concluded that there was a 75% chance that she would have completed the whole of it. The dissentient view of the Chairman was that the appropriate figure for that period was 40%.

    On behalf of the Ministry of Defence, Mr McManus has put forward six grounds of appeal.

    (a) 100% chance of return

    Mr McManus submitted that the finding that Mrs George would certainly have returned to work initially after a period of maternity leave was perverse in light of the statistical evidence, the findings of the Tribunal itself and the evidence before it. It is true that no mention is made of the statistical evidence in paragraph 4 of the Decision where the finding of certainty or 100% is set out. On the other hand, it is abundantly clear from paragraph 5 of the Decision that the statistical evidence was considered by the Tribunal when deliberating upon the 22 year period. In our judgment there was evidence upon which the Tribunal was entitled to make its 100% assessment in this case. We have already referred to the evidence about her contemplation of an abortion and the finding that she was "very anxious to stay in the Army". It is also apparent from paragraph 5 that at least the majority of the Tribunal considered that Mrs George "was committed to Army life". As with the other cases, evidence about what she did in fact do after discharge does not necessarily mean that she would have done the same if there had been no discharge. In our judgment the Tribunal was entitled to make this assessment of a 100% chance in respect of the initial period.

    (b) Assessment of the chance of completion of engagement at 75%

    It goes without saying that the mere fact that the Tribunal lacked unanimity of this point is not an indication of perversity. Indeed, there is some indication that the Chairman himself, whilst dissenting, did not consider his colleagues to be perverse since he states in paragraph 5: "All these factors are arguable." The majority proceeded on the basis of a finding that Mrs George was committed to Army life. All three members of the Tribunal had regard to the statistical evidence as a starting point. The Chairman dissented because he was more influenced than the majority by evidence that turnover in the band was unusually high. The fact that he placed greater weight on this aspect of the evidence does not necessarily mean that the majority was perverse in attaching less weight. In our judgment there was evidence in this case which entitled the Tribunal majority to make the assessment it reached.

    A noticeable feature of this Decision is that it seems to be less detailed in its reference to specific evidential findings than the other Decisions which we are having to consider. We have seen a copy of the Chairman's Notes of Evidence on certain aspects of mitigation of loss. This followed the making of a selective order for the production of Notes of Evidence. Mr Elias QC, on behalf of Mrs George seeks to make the fundamental point in relation to a number of the grounds of appeal that, to the extent that they alleged perversity, they are unsustainable in the absence of full Notes of Evidence. Whilst we have attempted in this and the other appeals to do the best we can without Notes of Evidence where they have been absent or partially absent, we do consider that Mr Elias QC is particularly justified in taking this point in relation to this ground of appeal. If we had been in any doubt about the evidential justification of the Tribunal's assessment, we would have felt compelled to dismiss the appeal on this point by reason of the absence of Notes of Evidence.

    (c) Promotion prospects

    Paragraph 6 of the decision reads as follows:

    "In the view of all the members of the Tribunal compensation for the applicant should be assessed on the basis that she would have reached the rank of Lance Corporal after 10 years service. There is no evidence upon which the Tribunal can reasonably assess a chance of further promotion of Corporal."

    It is submitted on behalf of the Ministry of Defence that this finding was perverse and that "there was no evidence" which could support it. We repeat what we have just said about the absence of Notes of Evidence. Again, this is a ground of appeal in respect of which we consider that Mr Elias QC is completely justified in contending that the ground is unsustainable in the absence of Notes of Evidence. We observe that in the passage quoted the Tribunal itself referred to a lack of evidence in relation to further promotion. It would be somewhat odd if there had been a similar lack of evidence in relation to the minimal promotion referred to in the previous sentence. This ground of appeal must fail.

    (d) Misdirection on promotion prospects

    The submission of Mr McManus on this point is that the finding that compensation "should be assessed on the basis that she would have reached the rank of Lance Corporal after 10 years service" is a finding of fact rather than the assessment of a chance in accordance with Cannock. We do not agree. It is clear from the following sentence that the Tribunal was concerned about the assessment of "a chance" of further promotion and in our judgement, the finding in respect of promotion to lance corporal amounts to neither more nor less than an assessment of a 100% chance that such a minimal advancement would have been achieved after 10 years. This ground of appeal therefore fails.

    (e) Misdirection on mitigation

    In paragraph 7 of its decision the Tribunal considered whether Mrs George could reasonably have been expected to have done more than she did to secure employment for the first five years after the birth of her first child. In the course of that passage the Tribunal stated:

    "In the view of the Tribunal the market value of an applicant with three young children is very low indeed."

    As in the Hunt and Wheeler cases, Mr McManus submits that the Tribunal has allowed its assessment to be distorted by making a gender based assumption. Although the language here is different from the language used in Hunt and Wheeler, in our judgment the effect is precisely the same. The Tribunal was not basing its decision on a gender based assumption of its own but was taking into account, as it was entitled to do, its knowledge and experience of the difficulties in obtaining employment experienced by women with young children. As in the other cases, this ground of appeal fails.

    (f) Perversity in relation to mitigation

    Elsewhere in paragraph 7 of the decision the Tribunal stated:

    "The Tribunal has also to assess the validity of the actions of the applicant in mitigating her loss. In the view of all the members of the Tribunal she could not reasonably be expected to do more than she did to secure employment for the first five years after the birth of her first child. It is perfectly true that for much of that time she was fit enough to work and, had she remained in the Army would have worked. The issue of whether she could work is not in question, what the Tribunal has to consider is whether she could reasonably have obtained other employment."

    It is at this point that the Tribunal made its reference to the market value of an applicant with two young children. The Tribunal then continued to express the opinion:

    "That by the date of this hearing the applicant should have reasonably built up her earning capacity to full-time employment at a rate of at least 8000 per year. It seems to the Tribunal that the best way to assess the ascending income is to take a median of 4000 and multiply it by the period of 7 years. In the view of the Tribunal, therefore, the applicant should have earned not less than 28000 in alternative employment by the date of this hearing and that amount is to be set off against her loss of income in her Army post."

    The submission made on behalf of the Ministry of Defence is that this paragraph is perverse or, alternatively, contains a misdirection. The alleged perversity was put in the form of a failure to have regard to the fact that there was no evidence that Mrs George had attempted to pursue a career or full-time work following the birth of her first child, that she had not sought to re-enlist in the Army; and that she had followed her husband on postings abroad. This of course refers to the period of five years following the birth of the first child. Mr George gave evidence to the effect that his wife was fit to work from November 1982 and "made every attempt to find a job". During the 21/2 years in Germany there was evidence to the effect of a lack of jobs and a lack of child minding facilities for persons in Mrs George's position. She also had language shortcomings. Following the move to Chester, after a settling period of six weeks Mrs George gave evidence to the effect that she then started to look for work through the local papers and via the Job Centre. She made some applications and had some interviews. Soon afterwards she became pregnant again and was advised to take things easy because of difficulties which had arisen in the first pregnancy. We have considered the Notes of Evidence. It is conceivable that other Tribunals might have found some failure to mitigate during that initial five year period. However, we do not feel able to say that this particular Tribunal was perverse in concluding that there was no such failure to mitigate during that period.

    Mr McManus further submits that the Tribunal misdirected itself in law by deciding to deduct notional earnings on the basis of a gradually ascending earning capacity. In our judgment, having accepted that the applicant had failed to mitigate her loss between 1987 and 1994, the Tribunal was entitled to approach the quantification of the consequences of such failure in the way it did.

    Mr McManus further submitted that the finding about failure to mitigate and its quantification should not have ended at the date of hearing but should have been projected and applied to future loss. This submission is clearly correct. On this limited basis the present ground of appeal technically succeeds. This does not necessitate a remission back to the Industrial Tribunal. It is sufficient if we indicate that the finding is to apply to future loss. Mr Elias QC has stated that he is content with such an indication.

    Before leaving the case of Mrs George we ought to refer to a letter which she wrote on 3rd November 1992. Although it was stated to be "without prejudice" we understand that she waived any privilege in relation to it at the Industrial Tribunal. In it she referred to her claim for loss of earnings as being "up to mid-September 1985 when I would have been leaving the Forces to have my second child". The Ministry of Defence has sought to attach significance to this letter in relation to the assessment of the chance of completing the 22 year engagement. In our judgment it can have had no bearing on that assessment. It was the view of all three members of the Industrial Tribunal that to treat the birth of the second child as an event terminating compensation was "not a viable proposition because it seems to us very unlikely that the applicant would have had a second child had she been permitted to remain in the Army." In our judgment the Tribunal was entitled to treat that letter as something of a red herring.

    By way of summary, the Ministry of Defence's appeal in relation to Mrs George fails save for the small matter of future loss and mitigation to which we have referred.


     

    APPEARANCES

    For the Appellants MR J R McMANUS

    (of Counsel)

    The Treasury Solicitor

    Room 449

    Lacon House

    Theobalds Road

    London WC1X 8RY

    For the Respondent MISS D ROSE

    (of Counsel)

    Messrs Tyndallwoods

    1st Floor

    Albany House

    Hurst Street

    Birmingham

    B5 3BD

    (4) MINISTRY OF DEFENCE V MRS S L DONALD

    Mrs Donald was born on 3rd July 1956 and enlisted in the Women's Royal Army Corps on 9th October 1973 on a 22 year engagement. On 8th August 1975 she was promoted to acting lance corporal; on 2nd February 1976 to lance corporal; on 10th September 1976 to acting corporal; and on 2nd June 1977 to corporal. She was posted to Germany in July 1978. In July 1979 she discovered she was pregnant. She was married in following month. On 3rd October 1979 she was dismissed by reason of her pregnancy. She gave birth to her first child on 5th February 1980. Later that year her husband left the Army on 8th December 1980 the family returned to the United Kingdom. The second child was born on 26th June 1982. The marriage was dissolved in 1990.

    Mrs Donald's claim for compensation came before the Industrial Tribunal in Birmingham. The Tribunal found a 100% chance that Mrs Donald would have taken maternity leave in relation to the birth of her first child; a 90% chance that she would have returned to service after maternity leave; a 50% chance that she would have taken maternity leave before the birth of the second child; and 25% chance that she would have returned to service after the birth of her second child and proceeded to complete her 22 years.

    The Ministry of Defence's Notice of Appeal recited numerous grounds of appeal. However, before us Mr McManus has confined himself to three such grounds.

    (a) Cumulative chances

    On behalf of the Ministry of Defence Mr McManus submitted that the Tribunal carried out the calculation by applying the percentage chance at each state in isolation from the preceding stage. That, he submitted, is a misdirection which leads to over compensation. The submission is that the chance at each stage should be assessed by multiplying the percentages cumulatively so that the figure applied at each stage is a percentage of a percentage. It will be recalled, that we have seen fit to allow an appeal by the Ministry on a similar point in relation to Mrs Wheeler. The position here is somewhat different. In paragraph 14 of the decision the Tribunal stated:

    "As to the award we have when completing our calculations stood back and used a due sense of proportion and we set out the award. This required the Tribunal to deliberate at length at each stage of its percentage chance consideration and to pay due regard to its findings of percentage chances at the preceding stage. We appreciate there is a school of thought that would calculate such chances on a percentage of a percentage but had we adopted such a method we would not have reached a just and sensible award and would have had to reappraise our chance findings."

    On behalf of Mrs Donald, Miss Rose submits that the Tribunal explained in the foresaid passage that the percentages selected by it were selected on the basis that they were not applied cumulatively. It is clear, she submits, that if the Tribunal applied cumulative percentages, the percentages would have been larger. In our judgment the proper approach is for the Tribunal first to quantify the percentage chance or chances. They should do that before considering the consequential arithmetic. Having arrived at differential percentage chances, it is then incumbent upon the Tribunal to make a cumulative calculation on the basis of a percentage of a percentage. This the Tribunal did not do in the present case. What they did do has resulted in a lack of clarity as to their intentions. In our judgment the submission made on behalf of the Ministry of Defence on this point is well-founded. The Appeal will be allowed on this ground. The consequence is that the matter will have to be remitted to the Industrial Tribunal for it to go through the process in the manner we have described. It is not for us to second guess whether the eventual calculation will result in a different final figure.

    (b) Misdirection on mitigation

    In paragraph 9 of the Decision the Tribunal stated:

    "Any applicant is under a duty to mitigate or reduce her loss as far as she is able. It is for the employer to show that she has failed to do so. They have failed to adduce evidence by cross-examination or by evidence adduced to show that failure."

    There is then a reference to the Banco de Portugal and a misquotation of Lord MacMillan's speech. The Tribunal continued:

    "We are not satisfied that this applicant has done everything that is reasonable to mitigate her loss. Therefore although it seems likely that there may have been a failure on her part to take active steps to mitigate her loss we have no evidence on the basis of which we can arrive at a figure which reflects that failure to mitigate and therefore we make no finding on it."

    Mr McManus submits that, properly construed, this paragraph amounts to a finding of failure to mitigate but a refusal to fill in evidential gaps by the application of the Tribunal's own knowledge of labour market conditions at the relevant time and place. In our judgment, that is not a proper construction of paragraph 9 of the decision. It is a construction which fails to take account of the burden of proof on this issue. It was not for Mrs Donald to establish that she had done everything reasonable to mitigate her loss. It was for the Ministry of Defence to prove that she had not. The highest that it can be put from the Ministry's point of view is that the evidence left the Tribunal with the feeling or suspicion ("it seems likely") that there may have been a failure to mitigate. However, having failed to adduce evidence by cross-examination or by themselves adducing evidence to prove that Mrs Donald had not taken reasonable steps to mitigate her loss, the Ministry themselves created an evidential vacuum. Just as in some of the other cases with which we have dealt, we do not consider it appropriate here for the Ministry to expect the Tribunal to fill this vacuum. In our judgment the refusal of the Tribunal to apply a discount in respect of failure to mitigate has arisen entirely from the manner in which the Ministry conducted its case and from its failure to prove what it seeks to assert.

    (c) Misdirection as to calculation

    It was in relation to this appeal that we received the fullest submissions on the question whether deductions from loss of earnings should be made before or after the application of the percentage figure for loss of a chance. We canvassed this issue fully in the general part of this judgment preceding our consideration of the individual appeals. We repeat that, notwithstanding the judgment of this Appeal Tribunal in Bristow, we do not consider the Ministry's submissions to be well-founded.

    It therefore follows that, in relation to the case of Mrs Donald, the appeal succeeds in relation to Ground (a) but fails in relation to grounds (b) and (c).

    At the conclusion of the hearing of this appeal, Miss Rose on behalf of Mrs Donald made an application for costs "in any event". She submitted that the original Notice of Appeal sets out numerous grounds and that most of them were wholly unarguable. She referred us to correspondence on 24th October 1995 when her instructing solicitors had pointed this out to the Treasury Solicitor who declined to go into detail regarding how the appeal would be conducted. Miss Rose's "in any event" application for costs is limited to costs incurred in relation to those grounds of appeal set out in the Notice but which have not been pursued. Such costs include part of the preparation of the respondent's skeleton argument and part of the preparation for the hearing at which final abandonment of the other grounds was only notified on the morning. Whilst we have some sympathy with Miss Rose's submission, we have come to the conclusion that the history does not disclose unreasonable conduct on the part of the Ministry of Defence and the present application for costs is dismissed.


     

    APPEARANCES

    For the Appellant MR R ALOMO

    (of Counsel)

    Brixton Community

    Law Centre

    506 Brixton Road

    London SW9 8EN

    For the Respondents MR R McMANUS

    (of Counsel)

    The Treasury Solicitor

    Room 449

    Lacon House

    Theobalds Road

    London WC1X 8RY

    (5) MRS J STUART V MINISTRY OF DEFENCE

    Mrs Stuart joined the Women's Royal Air Force in April 1964 on a 22 year engagement. She was then aged 17. She married her husband in October 1969. He was also in the Royal Air Force. She was discharged by reason of her first pregnancy on 28th October 1980. That child was born on 14th January 1981 and Mrs Stuart gave birth to two further children on 20th June 1982 (sadly, a stillborn child) and 26th April 1984 respectively. Mr Stuart completed his 22 years engagement in 1984 or 1985. The Industrial Tribunal at Bristol came to the conclusion that if there had been provision for maternity leave in 1981 Mrs Stuart would not have returned to the WRAF after the birth of her first child but "would have preferred to complete her family rather than her service". It estimated the chance of her returning, if she had been able to do so, at 20%. She had not pursued an appeal against this part of the Decision. Although her Notice of Appeal purported to raise a number of appeal points, Mr Kibling has quite rightly abandoned them all save for one relating to mitigation of loss. The relevant parts of the Decision on this issue are in the following terms:

    "9. ... After the [first] birth she recalls trying to obtain employment in her trade as a vehicle painter/sprayer but would not get such a position. She was successful in obtaining part-time work at Calne Sports Centre as a part-time swimming instructor and part-time lifeguard. The applicant, because of her husband's position financially, did not need to work full-time and preferred to work part-time in the job which she liked, rather than to seek full-time employment ..."

    "13. As far as mitigation is concerned, our conclusion is that it would have been possible in the early 1980's for the applicant to have obtained full-time employment had she wished to do so, and that the pay she could have expected to receive would have been between 3500 and 4000 a year. We are satisfied that she did not look for full-time employment because first her husband's financial position was sound that she did not have to do so and secondly she was particularly keen to continue with her swimming instruction and that was only available on a limited basis. That was a choice which the applicant was quite entitled to make and it cannot be criticised in any way, but it did mean that she voluntarily took herself out of full-time employment - which is what she would have had to do had she returned to the services six months after her daughter's birth. On hearing the salary figure, Counsel for both sides agreed that they should take the figure at 3750."

    Mr Kibling submits that the Industrial Tribunal erred in law in determining that Mrs Stuart had failed to mitigate her loss and that she could have secured full-time employment at 3500 - 4000 per year in the absence of any evidence as to the availability of full-time work in the Calne area, the nature of such work and its likely duration within the relevant period. Essentially, his submission is that the Industrial Tribunal unjustifiably filled gaps in the evidence - the other side of the coin from these appeals in which the Ministry of Defence as appellant has contended that Industrial Tribunals have wrongly refused to fill evidential gaps. Mr Kibling relies on Gardiner-Hill v Roland Berger Technics Ltd, the relevant passage from which we have set out earlier in the judgment.

    In this appeal we have had the advantage of seeing the Chairman's Notes of Evidence. They clearly support findings that Mrs Stuart made little or no attempt to obtain work as a civilian paint-sprayer; that she did not register at the Job Centre; that she chose to pursue swimming instruction which, because of her lack of formal qualifications was only available on a part-time basis; that the family's financial circumstances were such as to enable her to work on a part-time basis only; and that she had only applied for a full-time job in 1994. The assessment of her full-time earning capacity in the early 1980's in the region of 3750 cannot be attacked - not only was it agreed by Counsel without apparent objection; it was also very close to Mrs Stuart's terminal salary in the WRAF. The remaining question is whether the absence of specific evidence about the availability and potential duration of jobs can sustain an appeal.

    We note that there is nothing to indicate that Counsel objected when the Tribunal revealed its provisional thoughts about mitigation - quite the contrary. It resulted in an agreement as to an annual salary figure and, soon afterwards, an agreed quantification of the whole claim based on the Tribunal's rulings. (We should add that although both parties were represented by experienced Counsel at the Industrial Tribunal, they were in both cases different from Counsel appearing before us). Moreover, although we are mindful of the burden of proof in relation to an alleged failure to mitigate resting on the Ministry and of the importance of the approach set out in Gardiner-Hill (Supra), we do not consider that this Industrial Tribunal overstepped the mark. Mrs Stuart preferred not to seek full-time employment. On the basis that she exercised a preference (as the Tribunal found), there must have been, at least by implication, a full-time alternative and, to the extent that there was, the deemed salary of 3750 was not inherently perverse (being comparable with her terminal WRAF pay) and came to be agreed by Counsel. In our judgment there was a basis in the evidence and in the way in which the case was conducted by Counsel to justify the findings of the Industrial Tribunal. Notwithstanding the submissions so ably advanced by Mr Kibling, Mrs Stuart's appeal fails and is dismissed. We should add that we are satisfied that this was not one of those situations postulated in Halford v Sharples [1992] IRLR 147, 165-177, where the Industrial Tribunal has resorted to it experience as an industrial jury without affording the parties an opportunity to make representations.


     

    APPEARANCES

    For the Appellant MR T KIBLING

    (of Counsel)

    Goughs

    28 Church Street

    Calne

    Wiltshire

    SN11 0HX

    For the Respondents MR R McMANUS

    (of Counsel)

    The Treasury Solicitor

    Room 449

    Lacon House

    Theobalds Road

    London WC1X 8RY

    (6) MRS S ANDERSON V MINISTRY OF DEFENCE

    Mrs Anderson enlisted in the Royal Corps of Signals on 28th October 1980. She married in February 1982. Her husband was also in the Royal Signal Corps. In July 1984 she became a lance corporal and she was posted to Northern Ireland. She continued to attract favourable reports until October 1985 when she attended but failed a corporal's course. On 23 January she wrote to her commanding officer: "due to the fact that I am considering terminating my service in the latter part of 1986, I do not wish to be considered for any more career courses." Within a week of writing that letter she had a pregnancy test which proved positive. She was discharged by reason of her pregnancy on 25th April 1986. In the meantime she had attracted unfavourable reports from her superiors referring to her "losing self-confidence and adopting a negative attitude towards her employment." Her claim for compensation was heard by an Industrial Tribunal sitting at London (South). The Tribunal found that in January 1986 she had formed the intention to leave the Army later that year, having been disillusioned and unhappy. If there had been a system of paid maternity leave at that time, she would have taken advantage of it to maximise her financial benefits but, after taking the full period of paid maternity leave, she would not have returned. Thus, her service would have been extended for 14 weeks beyond 29th September 1986, the date of birth of her child. The Tribunal stated (paragraph 17):

    "We rate that prospect as 100%. However, we rate the prospect of her return to service after maternity leave to be nil."

    There was therefore a very short period of loss of earnings. In addition, the Tribunal assessed the appropriate figure for injury to feelings at 250. He appeal to the Employment Appeal Tribunal relates to two matters:

    (a) the finding a nil prospect of her returning after maternity leave; and

    (b) the award of 250.

    (a) The nil prospect

    The submissions made by Mr Alomo under this head are conceptually similar to the one made on behalf of the Ministry of Defence in respect of the 100% assessments of chances. The Industrial Tribunal was not impressed with the evidence of Mrs Anderson on disputed matters and preferred the evidence of her commanding officer, Major Wright. However, Mr Alomo pointed to the Cannock case and the requirement that the Tribunal should have considered all the evidence, including the Ministry of Defence's statistical material and the possibility that, notwithstanding her formed intention in January 1986, she might have undergone a change of mind at some stage before the end of the notional maternity leave. He submitted that the Tribunal had erred in concentrating on her evidence to the exclusion of these other matters and possibilities. This submission clearly illustrates the inappropriateness of affording to the statistics a significance greater than their worth. If the Tribunal is satisfied on the basis of her evidence and the contemporaneous document, that there really is no chance that the particular woman before it would have continued to serve after the notional period of maternity leave, what is the point of crediting her with X% chance of continuing to serve simply because the statistics show that some women do return and this woman might have changed her mind? It makes no more sense than crediting a person with a percentage chance of obtaining a degree in the face of clear evidence that a person had no intention of studying for one but on the basis that a known percentage of the population obtain degrees. In our judgment there is no basis whatsoever for disturbing the Tribunal's assessment that the chance of service continuing beyond notional maternity leave was nil.

    (b) Injury of feelings

    Mr Alomo sought to attach the award of 250 in respect of injury to feelings on two bases. First, he criticised the Tribunal for concluding that the injury to feelings in this case was "necessarily limited" in the light of the other findings of fact, particularly the finding that Mrs Anderson had previously formed an intention to leave in any event. We do not think that there is any merit in this submission. Secondly, he submits that the award of 250 was simply too low. This is a more sustainable argument. Parts of her evidence about her feelings were referred to in the Decision and not specifically rejected. For example:

    "It was clear to us from seeing and hearing Mrs Anderson that she still feels upset and bitter about the circumstances in which she left the Army ... she expressed in strong terms the injury to her feelings which she experienced in respect of her discharge."

    The Tribunal considered that she was entitled to an award for injury to feelings. In the circumstances, the finding that she would soon have left of her own accord was clearly relevant to the size of the award but she was still entitled to be compensated on the basis that her feelings were injured by her unlawful discharge.

    We cannot identify a wrong principle of law or a misapprehension of the facts on the part of the Tribunal. However, an appeal on the quantum of compensation can also be founded on "a wholly erroneous estimate of the damage suffered": see Coleman v Skyrail Oceanic Ltd [1981] IRLR 398, 401, per Lawton LJ. We take this to be the same as a perverse quantification. A perusal of recent authorities on compensation for injury to feelings in cases of race discrimination establishes that there is an emerging picture of 500 being "at or near the minimum". See Sharife v Strathclyde Regional Council [1992] IRLR 259; Deane v London Borough of Ealing [1993] IRLR 209; Alexander v Home Office [1988] IRLR 190. This disposes us to the view that the award of 250 in the present case was a "wholly erroneous estimate" and to that extent Mrs Anderson's appeal is allowed. We have considered whether, in the circumstances, this requires us to remit this part of the award to the Industrial Tribunal for redetermination. We have concluded that we are not so required. Instead we shall substitute the sum of 750 in respect of injury to feelings.


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