United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 618_94_0711

Appeal No. EAT/618/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7 & 8 November 1994

Before

THE HONOURABLE MR JUSTICE PILL

MRS M E SUNDERLAND JP

MR G H WRIGHT MBE

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MRS S PITT          APPELLANT

MINISTRY OF DEFENCE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR C VAJDA

(OF COUNSEL)

Treasury Solicitors

First Avenue House

Room 320,

High Holborn

London WC1V 6HG

For the Respondents MR PETER FORTUNE

(OF COUNSEL)

Messrs Talbot Walker

16 Bridge Street

Andover

Hampshire SP10 1BJ


 


MR JUSTICE PILL: These two cases are two of a very large number of claims for compensation made by women following their dismissal from Her Majesty's Forces because they were pregnant. The Secretary of State for Defence appeals against decisions of Industrial Tribunals in each case. The case of Mrs Pitt was decided on 20 May 1994 by an Industrial Tribunal held at London (South) and the case of JG by an Industrial Tribunal held in Exeter on 3 May 1994. In both cases the Appellant served a Notice of Appeal within the time limit. In each case there were grounds in support of it. In the case of JG they were settled by Counsel.

By their present application the Appellants seek to amend their Notices of Appeal. They seek to put what is admittedly and avowedly a different case from that put forward in the Grounds of Appeal served within the time limit. We can say now, that after a hearing lasting almost a day, the application for leave to amend in the case of Mrs Pitt has been abandoned. However, it is appropriate in the course of this judgment to refer to it because of the manner in which the application has been made and the general considerations in relation to cases of this kind which arise.

It is important that we give judgment now at the conclusion of argument rather than upon further consideration so that we can proceed with the substantive hearing in the case of JG.

In the case of Mrs Pitt the Originating Application was dated 14 August 1992 and in the case of JG, 16 November 1993.

Following the decisions of the two Tribunals in the present cases this Tribunal gave judgment in the case of Cannock and others on 29 July 1994 now reported at 1994 IRLR 509. On 18 October 1994 an amended Notice of Appeal in the case of JG was served. That was further sought to be amended - I may have confused the 2 cases.

On 1 November 1994 in the case of Mrs Pitt, a further amended Notice of Appeal was served. The Respondent Solicitors received the amended notice in the case of Mrs Pitt and the re-amended notice in the case of JG on 2 November, that is Wednesday of last week. We have referred to the fact that the re-amended Notice of Appeal introduces fresh ground and a fresh case. In the case of JG the amendments run to over 5 pages of typed script and in the case of Mrs Pitt to over 6 pages.

The case of Cannock and others was heard to determine not only the cases before the Tribunal but the opportunity was taken with the encouragement of the parties, particularly The Department, to set out guidelines which might be followed by Industrial Tribuals. Concern was felt about the manner in which the cases were being handled at Industrial Tribunals and on the part of the Department for the size of the awards which in some cases were being made.

Mr Vajda submits that leave should be granted notwithstanding the late application so that the appeals can be determined in accordance with the guidelines in Cannock. He has expressed on behalf of the Department the very proper concern which the Department feel which the Department have for public money and its expenditure. The application is made as Mr Vaja frankly put it so that the Department could have the benefit of Cannock. Mr Vajda has referred us to several passages in the judgment in Cannock to illustrate the points which he seeks to make upon this application. At paragraph 25 the Tribunal saw fit to make preliminary general observations, some of which were in relation to the long time lag between the date of the unlawful acts, namely the dismissals due to pregnancy and the date of the hearing of the complaints. At point 2(b) under the general heading the Tribunal stated:

"Until 1993, any woman, whether employed by the State, such as the seven applicants, or otherwise, who was dismissed by reason of pregnancy would have been entitled to an award under the Act or the Directive which was limited to £11,000. Thus, if the applicants' claims for unlawful discrimination had been brought in the 1980s, say, they would have recovered no more than the statutory maximum in force at that time and the Industrial Tribunal would have had no power to award interest. It follows, therefore, that if Parliament had not exempted employment in the armed services from the Act, none of the complainants in this case would have recovered more than a few thousand pounds. Thus, the uncertain legal position has, in one sense, worked in the applicants' favour. Further, the law has developed, so that awards for injury to feelings have increased as the courts have become more mindful of the humiliation, anger and distress that sex discrimination can cause. Again, because they are bringing claims to which there is no time limit (the Government having failed to implement the provisions of the Directive in full) the applicants are getting a benefit from the delay. The same applies to the awards of interest which only became payable, under domestic law, from November 1993."

Earlier, at paragraph 19 the Tribunal had stated :

"In laying down guidelines it will become clear that we are taking a different view as to the proper approach to compensation from that taken by some Industrial Tribunals. Yet, because the MoD have chosen not to complain about the Tribunal's general approach, save on the limited specific grounds which is argued before us, there will be an inconsistency between the actual disposal fo these appeals and the results which would have been obtained had our guidelines been applied to the seven cases. Further, because of the way the matter has been argued, large awards which we feel to be wholly unjustified, will remain undisturbed, although we would hope that, for the future, Industrial Tribunals will be wise enough to ignore them when assessing compensation."

Before proceeding we make two comments upon that paragraph. First the reference to the Ministry having "chosen not to complain" would appear to arise from an earlier paragraph to which we will refer whereby the Department declined the opportunity to apply to amend their Grounds of Appeal. The second comment is to draw attention to the expression "for the future" towards the end of that paragraph.

Mr Vajda also referred us to paragraph 146 which is the first paragraph in the decision under the heading "Summary of conclusions":

"1. Industrial Tribunals were faced with difficult problems; these are some of the first cases with which they have had to deal where their jurisdiction to award compensation is unlimited. It appears to us that they have conscientiously attempted to assess compensation in the light of the arguments presented to them. To an extent, the parties have also been "feeling their way". It is our view that, often through no fault of their own, some Tribunals have been induced to make what we regard as manifestly excessive awards of compensation. That is because we do not consider that either the MoD or the applicants have put before the Industrial Tribunals what we believe to be the correct approach to the assessment of compensation."

Before turning to the reasons Mr Vajda gives why leave to amend should be granted. We refer briefly to decisions.

In Mrs Pitts' case the Tribunal in their conclusion at paragraph 13 stated that:

"On the evidence we find on the balance of probabilities that Mrs Pitt would have remained in the Army up to the completion of 12 years' service, that is to July 1995."

They went on to find that she would have been promoted to corporal but not, in their view, to sergeant. They also considered general damages, cost of childcare and other matters.

In G the Tribunal having set out the facts posed 3 questions. The primary question is - Would she have taken the opportunity had it been available? (that is the opportunity to remain in the service; second, the question then arises - How long would she have remained? and thirdly the next question is whether she would have remained beyond the 16 years and whether she would have been promoted and/or allowed to extend her service.

The Tribunal applied as a legal test the principle in Davies v Taylor [1974] AC207, a decision of the House of Lords which they rightly state:

"dealt with the question of how to value the loss of a chance."

The speech of Lord Reed in that case is cited extensively.

Mr Fortune opposes