United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1220_94_1606

Appeal No. EAT/1220/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16th June 1995

THE HONOURABLE MR JUSTICE TUCKER

MRS T MARSLAND

MR T C THOMAS CBE

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MRS P M COLLINS          APPELLANT

THE MINISTRY OF DEFENCE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR J D BACON

(of Counsel)

Messrs Gill Akaster

Scott Lodge

Milehouse

Plymouth

PL2 3OD

For the Respondents MR J R MCMANUS

(of Counsel)

The Treasury Solicitor

Room 449

Lacon House

Theobalds Road

London

WC1X 8RY


 


MR JUSTICE TUCKER: This is an appeal by Mrs Patricia Maureen Collins formerly a member of the Queen Alexandra's Royal Naval Nursing Service from a decision of the Industrial Tribunal sitting at Plymouth and delivered on 24th October 1994.

This is one of a number of such appeals listed before us this week. They all arise from complaints that service women have been discriminated against by being dismissed from the service on the grounds of their pregnancy.

The present appeal is on a quite separate and discrete point and raises no question of principle. The question which the Tribunal had to decide was whether this appellant was dismissed or forced to resign because she was pregnant on the one hand, or whether she left voluntarily on the other. The Tribunal concluded that she left voluntarily and that in those circumstances there was no question of discrimination and no question of awarding her compensation.

The grounds of appeal are that the Tribunal misdirected itself or erred in law in a number of respects, and that it came to a decision which no reasonable Tribunal properly directing itself could have reached.

Mrs Collins was born on 19th May 1962, so she is now 33. She joined the Queen Alexandra's Royal Naval Nursing Service on 14th May 1984 when she was nearly 22 years old, having already qualified as a nurse. She spent her service life at the Royal Naval Hospital, Stonehouse, Plymouth. In May 1985 she married a member of the Royal Marines. In 1988 an event occurred which turned out to be some significance, Mrs Collins applied for an upgrading in status. This was refused without reason, and by a letter dated 20th January 1989 she was informed that she could not re-apply. Mrs Collins was upset by this. By an application made on 30th January 1989, she gave nine months notice of her wish to leave the services on 29th October 1989. Her engagement was for nine years and was due to expire on 13th May 1993. This was a voluntary decision taken by the appellant. It was a course which she was entitled to take, and the reasons set out by the Tribunal was that, because she felt she was prevented by the Royal Navy from pursuing the course for a Registered General Nurse apparently permanently, that would be a detriment both to her nursing career and to her career in the Royal Navy, and to the prospects of promotion.

During the currency of that notice, the appellant became pregnant. Her baby was subsequently born on 9th March 1990, so presumably the baby was conceived in late May or early June of the previous year. The pregnancy was certainly confirmed at the hospital on 10th July and a remark appeared on the notes that Mrs Collins was going to leave in any event. However, Mrs Collins' case before the Industrial Tribunal was to the contrary. She told them that before she knew she was pregnant she started the process of withdrawing the notice. She said that she did not tell the Royal Navy that she was pregnant until September. In other words her case was, that she had second thoughts about leaving the services, that she had decided to withdraw her notice and stay on, and that that had nothing to do with her pregnancy. Unfortunately, Mrs Collins' account was shown to be unreliable. When confronted by the hospital notes she had to concede that the Royal Navy knew that she was pregnant on 10th July.

The process of withdrawing the notice of discharge which according to the appellant was started before she knew she was pregnant, was formalised by her making an application to withdraw that notice. Mrs Collins signed that application on 14th August by which time she must have been over two months pregnant and when the pregnancy had been confirmed five weeks earlier. On the very same day, she signed another form, again applying for discharge as of right, but this time on the grounds of pregnancy. Her case was that this was not a voluntary application but was done because she felt she had no choice in the view of the Royal Navy's policy of discharging servicewomen when they became pregnant. The effect of that second application to discharge, in practice, was to postpone the date of her leaving from 29th October to 10th December 1989, which was said by the respondents to have been done for the convenience of both the appellant and the Ministry of Defence. A similar process took place in September which resulted in a further postponement until 12th January 1990. When asked for an explanation of these forms, the appellant told the Tribunal that she did not remember them at all. She was convinced that she simply withdrew her notice and subsequently discovered that she was pregnant. Her case was that the two documents signed on 14th August had no connection, and that she was dismissed because she was pregnant. Initially she told the Tribunal that she could not have withdrawn her notice if she had been pregnant, because she would not have been allowed to do so. Her case therefore was that she was dismissed against her will by reason of pregnancy.

The case for the respondents, the Ministry of Defence, was that the documents established that the appellant did not intend to withdraw her notice permanently, but did so simply to extend her service by means of the device of withdrawal with an immediate replacement notice giving a later date, and that she did that because she was pregnant.

The Tribunal had to consider which version was the more likely. The appellant's criticism of the Tribunal's reasons is that they did not make any express findings as to whom they believed, as to what was the nature of the appellant's ultimate application and as to what the true explanation for these notices.

We do not accept this criticism. It is not made out. For example in paragraph 32 of their decision, the Industrial Tribunal plainly posed the question as to what was the explanation for the notices, do they simply indicate that she was leaving in any event in accordance with the January notice, and just varying the date because she was pregnant? And in our opinion they answer that question inferentially if not expressly by their reasons set out in the following paragraph:

"33 We consider that there was ample time between 10 July and 14 August for the paperwork to be done and that the likelihood is that once she discovered she was pregnant she arranged for the withdrawal of her notice in order to change the date of leaving."

As to whom they believed, the Tribunal make it perfectly clear that they did not find the appellants evidence entirely reliable. They expressly say so in paragraph 29 and set out two reasons for that belief in that paragraph and two further reasons in succeeding paragraphs. At paragraph 35 the Tribunal posed the proper question for themselves saying that:

"35 The simple question is this: Did she resign and later change the date by this means to fit in with the pregnancy or did she withdraw her notice and then as an entirely separate and disconnected matter was she dismissed or forced to resign by reason of becoming pregnant?"

They answer that in paragraph 36:

"36 We consider the dates of the withdrawal notice and the subsequent notice to leave on the grounds of pregnancy would be highly unlikely to be precisely the same if the applicant's version is correct."

It is abundantly clear to us what the Tribunal felt about the appellant's evidence and her explanation. They did not accept it. They were fully entitled to conclude as they did, there is no question of perversity here, and no misdirections or errors in law.

The appeal is accordingly dismissed.