United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 159_93_0107

Appeal No. EAT/159/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 July 1993

Before

THE HONOURABLE MR JUSTICE TUCKEY

MR R H PHIPPS

MR G H WRIGHT MBE

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MINISTRY OF DEFENCE          APPELLANTS

MRS E SULLIVAN          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR J P MCMANUS

(OF COUNSEL)

The Treasury Solicitor

Queen Anne's Chambers

28 Broadway

London SW1H 9JS

For the Respondent MR G CLARKE

(OF COUNSEL)

Messrs Justin Nelson

Meridian House

St David's Bridge

Cranbrook

Kent TN17 3HL


 


MR JUSTICE TUCKEY: Following a hearing in January 1993 before the Bristol Industrial Tribunal of the Respondent's complaint that the Appellants who are the Ministry of Defence, were in breach of the provisions of Council Directive 76/207 on the basis that they had treated her differently by reason of her sex in requiring her to be discharged from the Royal Navy on 31 March 1985 due to her pregnancy she was awarded £5,443.00. The Appellants had admitted liability and the Tribunal were only concerned with the assessment of compensation. They found the following facts:

The Respondent had joined the Royal Navy on 21 January 1980 as a dental nursing assistant. Over the years she rose to the rank of Leading Wren. By that stage she was in a position from which she would have been able to advance her career by training as a dental hygienist. She got married on 4 June 1983. She became pregnant although this was unplanned and in September 1984 informed her Commanding Officer. He congratulated her and told her that she would have to apply for a compulsory discharge from the service. She did so and was discharged on 31 March 1985. At that time it was well known by service women that if they became pregnant their service careers would have to end. She gave birth to a son on 17 June 1985. After the child was born she decided not to take up further employment because she found that she had given birth to a very active son and that she ought to stay at home with him until he reached school age. The result was that she did not seek other employment.

Compensation was claimed under three heads. The first was for loss of earnings up to the date of the birth of the child, the second for loss of earnings after the birth of the child and the third for damages for injury to the Respondent's feelings as a result of the unlawful act of discrimination.

There is and was no dispute about her entitlement to loss of earnings up to the date of the birth of her child and subject to one point (the Tribunal appears to have awarded a gross amount when it should have been a net) nothing turns on that part of the award so far as the appeal is concerned, but both the other matters are the subject of appeal.

On the claim for loss of earnings after the birth of the child, the Tribunal awarded £3,129.10 representing 26 weeks loss of earnings and they awarded £750 as damages for injury to her feelings. We will deal with each of those awards, the reasons for them given by the Tribunal and the criticisms of those reasons in turn.

The reason for the award for loss of earnings after the child was born are set out in paragraph 6 of the Tribunal's decision. They say:

"We consider that the right approach is for us to award her compensation for such period as we would expect the respondents to allow a man to have sick leave on full pay where he sustained an injury which would incapacitate him for a period of 9 months after which he would be fully able to resume his full duties or reduced duties if they were available. On this basis we consider that it would be appropriate to award the applicant 9 months' loss of earnings from the date of her discharge"

As three of these months came before the birth they awarded 6 months loss of earnings after the birth. They go on to say:

"We have allowed for this further 26 weeks because the applicant's decision not to take up further employment was not made until after the birth of her child. Had it been made immediately on her discharge then the position would have been quite different. However, a mother giving birth to a child is in a difficult position about making long term decisions. All sorts of things can happen... Therefore we consider it appropriate that she should be allowed this further period of 26 weeks on the basis that that is the sort of treatment that we would expect a man incapacitated through injury for 9 months to receive."

The Appellants criticise that finding in a number of ways. First, they say that on the facts found, the Respondent's decision to give up work became the only cause of her loss from that moment onwards and therefore it was not appropriate to award compensation beyond that point. In legal language they say that that decision was a `novus actus interveniens' which broke the chain of causation between the unlawful act and the loss at that point.

Secondly, they say that the approach of the Tribunal in taking the analogy of a man suffering from an injury and recovering from it was flawed. This was not an appropriate way to assess compensation where it was and is common ground between the parties that common law principles of compensation apply. Thus the Tribunal was concerned simply with the question of what damage flowed from or was caused by the unlawful act in question.

Thirdly, they say that the Tribunal failed to consider the submission that the Respondent, by not seeking work, had failed to mitigate her loss. That submission was based in part upon the finding that the Respondent's husband was not in work at the material time. She could therefore have sought work if she chose to do so and accordingly the Tribunal ought to have said she was not entitled to compensation for this period because she had failed to mitigate her loss.

In answer to those submissions the Respondent seeks to rely on a number of points taken in her answer to the appeal. Firstly, (in paragraph 4(i)(b)) they say

"Had she not been unlawfully dismissed because of pregnancy, the Respondent would have been entitled (pursuant to the Equal Treatment Directive 76/207/EEC) to a period of maternity leave, both before and after the birth, sufficient to cater for the normal risks of pregnancy, associated fatigue, and the needs of her new baby."

The Appellants object to the Respondent introducing that ground because as is accepted, it was not a point that was canvassed before the Tribunal. The principle which this Appeal Tribunal operates is that parties should not be entitled to take points which are not taken below, particularly if those points require further findings of fact to be made in order to resolve them. As that is the case here Mr McManus says that we should not consider the point.

In reply to that the Respondent says that this is merely a responsive point; that it raises questions of EEC law which are paramount in this field; and that the Appellant, being an arm of Government, should not seek to shelter behind this rule of domestic law in order to get round the provisions of community law.

Even major questions do not, it seems to us, arise at all in this case. There is no rule of community law to which we have been referred which makes it clear that an Appeal Tribunal of this kind should not have a rule of procedure which precludes a party from taking a new point on appeal, particularly where it raises new questions of fact and the Appeal Court is one that is only concerned with points of law. On that simple basis we do not accede to the Respondent's submission that we are bound to hear and determine this point. We accept the submission that the new point does involve further consideration of factual matters. It would therefore be wrong to allow the Respondent to raise it at this stage.

We are told that there are other cases in the pipeline. If this is a valid point,it certainly does raise questions of law as well as questions of fact. It can be raised in another case before an Industrial Tribunal so that their conclusions can be tested here once they have made the necessary findings of fact. We do not therefore succumb to the temptation to make a ruling on this point now. Let the point be tested in an appropriate case.

We come back then to the causation point. Mr Clarke on behalf of the Respondent seeks to defend the decision on the basis that what we have characterised as the comparator approach is the correct approach in the assessment of compensation in a case such as this. Indeed he submitted that it was axiomatic that such an approach should be taken. At least he said, there was nothing wrong in law to proceed to deal with it in that way.

Secondly, he submitted that if he was wrong about that, the Tribunal in fact found that the decision not to go back to work was not taken for 26 weeks and therefore the point does not arise because it was not established on the facts found by the Tribunal. We will deal with those submissions in turn.

Firstly, the comparator approach. We emphasise that this is a case in which the Tribunal were concerned simply to assess compensation - what loss flowed from this unlawful act? They were not constrained by any legislative provision to adopt a comparator approach. They obviously were required to and did ask themselves the question: what would have happened if it were not for the unlawful act? They were entitled, if they thought it appropriate, to have regard to comparable situations in order to decide what was the appropriate measure of loss in this particular case. But they were not constrained to adopt an entirely artificial approach to the question. Their experience of this area of the law had obviously conditioned them to the difficult concepts of comparator which arise in the equal pay and sex discrimination fields but there was nothing which forced them to adopt a comparator approach to the simple question of the assessment of compensation in this case.

It seems to us that in assessing compensation on the basis that an injured man who had suffered from something which incapacitated him for a period of 9 months would have been able to resume full duties after a certain period, they fell into error. There are obvious dissimilarities between that situation and this which are we hope, self evident. They put themselves it seems to us into a straight jacket which they need not have done.

Dealing with the Respondent's second point we are unable to accept the Respondent's submission that they made an alternative finding to the effect that the decision not to return to work was only made after 6 months.

The concluding words of their Reasons:

"Therefore we consider it appropriate that she should be allowed this further period of 26 weeks on the basis that that is the sort of treatment that we would expect a man incapacitated through injury for 9 months to receive."

make that submission impossible to sustain in our view.

But that is not the end of the matter because Mr McManus realistically accepts that from the Reasons it is self-evident that there was a period between the date of birth and the date of the decision for which the Respondent should and could have been compensated. The problem is that this date is not found as a fact by the Tribunal so we do not know how long the period is. The inference, says Mr McManus, is that it is a very short period. I asked him "how short is short in this context?". Mr McManus was reluctant, quite understandably, to put any time limit on it but eventually when pressed he said "No more than one month". We were invited in these circumstances to use our commonsense and knowledge to decide what is short in the context of a woman who has recently given birth to a child, deciding whether or not she will return to work.

The strong view of the Industrial Members of this Tribunal based on their considerable experience in this field is that such a period is 6 months. For my part I defer gladly to their experience and have absolutely no reason to dissent from it. It follows that although we do not think that the Tribunal reached their conclusion by the right route because they complicated it unnecessarily by their comparator diversion, we think they reached the right result that is to say compensation for 6 months loss of earnings after the date of birth of the child, subject to Mr McManus's point about mitigation.

As to mitigation the common law principles are well known. It is for the party who asserts that there has been a failure to mitigate to establish it clearly. They will not succeed in doing that unless the conduct complained of can be characterised as unreasonable. That, says Mr McManus, can be shown here. We do not agree. The fact that the Tribunal does not refer to mitigation in its decision does not mean that they did not consider it. Submissions were made to them on this point. They no doubt rejected it for the reasons which we do, that our law recognises that a woman is entitled to be protected in the period following the birth of a child until such time as her physiological and mental functions return to normal and to protect the special relationship between a woman and her child by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment.

We remind ourselves also that this is not simply a case of someone who is deciding to return to a job which is being kept open, but someone who is being criticised for failing to seek new employment. We are quite unable to conclude in those circumstances that the Tribunal erred in law in rejecting the argument about failure to mitigate.

We turn then to the award for Injury to Feelings. In reaching the conclusion which they did, the Tribunal made the following comments:

"The applicant accepted the position [that is to say the position that she would have to leave] without complaint but we are sure that she must have been disappointed. She had, up until that time, been in a position where she had a steady career with a long prospect of continued employment. The ending of that position must of necessity have been a matter of disappointment for her."

They then reminded themselves of what was said by Lord Justice Lawton in Coleman v Skyrail Oceanic Ltd (t/a Goodmos Tours) [1981] IRLR 399 which was that:

"...any award in respect of injury to feelings had to result from the knowledge that it was an act of sex discrimination which brought about the dismissal."

and a passage from Alexander v The Home Office [1988] IRLR 191 where Lord Justice May said:

"...That the injury to feelings for which compensation is sought must have resulted from knowledge of the discrimination is clear from the decision of this court in Skyrail Oceanic Ltd v Coleman [1981] IRLR 398."

The Tribunal conclude by saying:

"We have taken account of these judgments in assessing the damages for loss of injury in this case. Notwithstanding the fact that the applicant accepted discharge stoically and without complaint we believe that it is right for us to draw an inference from the facts that it must inevitably have been a matter of disappointment to her that a steady career in the Navy was abruptly brought to an end as a result of her pregnancy. We therefore consider that the right sum to award to her for damages for injury to feelings is £750.00".

Mr McManus attacks this conclusion on the basis that although the Tribunal reminded themselves of the relevant principles, they clearly did not apply them. There was, he says, no factual basis for the conclusion that the Respondent had suffered any injury to her feelings; that the Tribunal had at least to have a scintilla of factual evidence that what had happened had injured her feelings before it was permissible for them to draw any inferences or make any award.

We think that that is an over legalistic analysis of the reasoning of the Tribunal. True it is that they draw the inference that the termination of the Respondent's career must have been a matter of disappointment to her, but they set out in the passage to which we have already referred the fact that she had up until that time been in a position where she had a steady career with a long prospect of continued employment. In our view it was an inevitable conclusion in those circumstances that the termination of her employment in a way which was unlawful, was a matter of disappointment and therefore a matter which had injured her feelings.

We remind ourselves of course that there is no automatic right to compensation for injured feelings in this field. Section 66(4) of the Sex Discrimination Act makes it clear that the Tribunal may, that is to say not must, award compensation in such circumstances. That statutory provision is no doubt necessary because in most cases where the courts are considering compensation, damage for injury to feelings per se is not a recoverable head of loss. We do not say that in every case a Tribunal is bound to award compensation for damage to injury to feelings but we would find it surprising if in most cases such an award (albeit a modest award which we consider this to be) is not made. That view is supported by a passage from the decision in Murray v Powertech (Scotland) Ltd 1992 IRLR 257 where at page 258 paragraph 7 Lord Mayfield says, having found that the Appellant was dismissed because she was pregnant, which is the case here:

"In our view, it is almost inevitable in sex discrimination cases that a claim for hurt feelings be made."

They proceeded to say that the Industrial Tribunal's decision to reject the claim in that case was an error in law. We repeat that we do not say that in every case an award under this head should be made but we do not think that there is anything wrong in law with the award that was made in this case.

For these reasons the appeal will be dismissed subject to the point about varying the amount of loss of earnings awarded under the first head of claim.