United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 174_95_1406

Appeal No. EAT/174/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14th June 1995

Judgement delivered on 24th July 1995

THE HONOURABLE MR JUSTICE TUCKER

MRS T MARSLAND

MR T C THOMAS CBE

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MRS J M ROWLEY          APPELLANT

SECRETARY OF STATE FOR DEFENCE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR W M MCCORMICK

(Of Counsel)

Metcalfe Copeman & Pettefar

Cage Lane

Thetford

Norfolk

IP24 2DT

For the Respondents MR R MCMANUS

(of Counsel)

The Treasury Solicitor

Room 449

Lacon House

Theobalds Road

London WC1X 8RY


 


MR JUSTICE TUCKER: We have had before us 6 appeals from decisions of Industrial Tribunals relating to servicewomen who were dismissed because of their pregnancy. Such dismissals are and were unlawful, as the employers, the Ministry of Defence, conceded. The question for decision by each of the Industrial Tribunals was that of compensation. In two of the appeals the Appellants are the Ministry of Defence, and in the remaining four appeals the Appellants are the ex-servicewomen. Two of the appeals, those of Mrs Collins and Mrs Dawson raised discrete and separate issues and we have already delivered our judgments in those two cases.

Such cases have been considered by the Appeal Tribunal on many occasions, notably in MOD v Cannock and 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. Some Chairmen of Tribunals have questioned some aspects of those guidelines.

The principal ground of each of these appeals is that the decisions of the Industrial Tribunals were perverse in the assessments they made of the chances that the applicants would have returned to work, and as to the duration of their service.

It was contended on behalf of the two Respondents to the Ministry of Defence appeals that it is impermissible to raise the question of perversity without having obtained the Chairman's Notes of Evidence; and that the appeals on this ground should not be entertained. It is correctly pointed out that in the two appeals by them the Ministry of Defence made no attempt to obtain these Notes until a very later stage. It was only shortly before the Appeals were due to be heard, that any application for the Notes was made. It was dealt with by the President of the Employment Appeal Tribunal, who refused the application, on the grounds that it was too late, and that he was not persuaded that they were necessary for the fair disposal of the appeals. A similar application was made by the Appellant Servicewoman in another appeal. Again the President refused it, on the ground that he did not consider that the Notes would be helpful.

In this context we have been referred to a number of authorities. The first of these was the decision of the Court of Appeal in Martin v MBS Fastenings (Glynwed) Distribution Ltd. [1983] IRLR 198. In that case Sir John Donaldson MR said this:-

"It is very important, and sometimes difficult, to remember that where a right of appeal is confined to questions of law, the appellate Tribunal must loyally accept the findings of fact with which it is presented and where, as can happen from time to time, it is convinced that it would have reached a different conclusion of fact, it must resist the strong temptation to treat what are in truth findings of fact as holdings of law or mixed findings of fact and law. The correct approach involves a recognition that Parliament has constituted the Industrial Tribunal the only Tribunal of fact and that conclusions of fact must be accepted unless it is apparent that on the evidence, no reasonable Tribunal could have reached them. If such be the case, and happily it is a rarity, the Tribunal, which is to be assumed to be a reasonable Tribunal, must have misdirected itself in law and the Employment Appeal Tribunal will be entitled to intervene."

and later said:-

"It is also submitted that the Tribunal's findings of fact were perverse. This involves the proposition that on the evidence no reasonable Tribunal could have reached the same conclusion. But neither we nor the Employment Appeal Tribunal had any note of the evidence which the Tribunal heard. It is no part of the duty of a Tribunal setting out its reasons to record all the evidence. In practice, in telling the story, the Tribunal will often advert to parts of the evidence, but no court having an appellated jurisdiction limited to question of law is entitled to assume that this is the totality of the evidence. If it is intended to appeal upon the ground that there was not evidence to support the Tribunal's findings, the appellant must take the necessary steps to obtain a note of the evidence."

We were also referred to another decision of the Court of Appeal in Piggott Bros. & Co. v Jackson [1991] IRLR 309. In that case Lord Donaldson MR again referred to the difficulties of raising a question of perversity without reference to the notes of evidence. He said this is paragraph 13:-

"I fail to understand how if an appeal is based upon, or includes, an allegation that the Industrial Tribunal's decision was perverse, it is possible to contemplate allowing the appeal without having access to all the evidence bearing on the alleged perversity."

And in paragraph 17 Lord Donaldson, having referred to the exposition of May LJ in Neale V Hereford and Worcester CC [1986] IRLR 168 at page 173, went on to say this:

"Nevertheless, it is an approach which is not without its perils. A finding of fact which is unsupported by any evidence clearly involves an error of law. the Tribunal cannot have directed itself, as it should, that findings of fact need some evidence to support them. The danger in the approach of May LJ is that an appellate court can very easily persuade itself that, as it would certainly not have reached the same conclusion, the Tribunal which did so was `certainly wrong'. Furthermore, the more dogmatic the temperament of the judges concerned, the more likely they are to take this view. However, this is a classic non sequitur. It does not matter whether, with whatever degree of certainty, the appellated court considers that it would have reached a different conclusions. What matters is whether the decision under appeal was a permissable option. To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal. if it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissable option and had to be characterised as `perverse'.

The most recent authority on perversity to which we were referred is Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440, a decision of the Employment Appeal Tribunal presided over by the President. At paragraph 33 Mummery J. said this:-

"Whenever an appeal is based on 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 conclusion 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 the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is `irrational', `offends reason', `is certainly wrong' or `is not a permissible option' or `is 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 ground of perversity. The reason why it is a heavy burden to discharge is that it had 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 difference tribunals, all 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-tooth comb'. 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 advisers to identify an error of law that may have occurred in reaching the conclusion. Viewed in that way, the decision of the Industrial Tribunal is not perverse."

We have borne these decision well in mind when considering these appeals. In some of these case we might not have arrived at the same conclusions as the Industrial Tribunal did. But that is not sufficient to cause us to interfere. We have only done so where we feel compelled to do so because we have been persuaded that the Tribunal's conclusion is plainly wrong or irrational.

We have felt able to deal with all the cases without having the Chairman's Notes of Evidence; and to remit one case for re-hearing despite not having seen them, for reasons which will appear. However, in future cases where perversity is alleged, those who advise the Appellants ought to consider in good time whether Notice of Evidence should be applied for, and should make any necessary applications well in advance of the hearing. It is no good making applications the week before the Employment Appeal Tribunal has a list of 6 or more such appeals to deal with. Such belated applications are likely to receive very little sympathy.

The first piece of general guidance offered by the Appeal Tribunal in Cannock was that the Industrial Tribunal should assess compensation in these cases by making an estimate of the chances of the events occurring which are relevant to the evaluation of the award. Such matters are likely to be, first and obviously, the likelihood of the return to service in the armed forces after a period of maternity leave; second, the prospects of promotion; and third, the possibility of continuing in the services for the whole period of the engagement.

That this is the correct approach has not been doubted before us. It has long been so in the field of personal injury litigation (see e.g. Mallett v McMonagle [1970 AC166, and Davies v Taylor [1974] AC 207). It is clearly the appropriate approach in cases such as the present, and we respectfully endorse the views to this effect contained in the judgment of the Appeal Tribunal in Cannock.

The criticisms made are not as to the adoption of this approach, but as to the methods by which Industrial Tribunals carried it out. In particular, it is contended that undue effect was given in some cases to the evidence given by the individual applicants as to what would have occurred but for the dismissals, and too little or no effect to statistical evidence as to what has happened in other cases.

The evidence of an ex-servicewoman as to whether she would have returned is obviously relevant, and is something to which an Industrial Tribunal would attach importance. But as was said in Cannock (page 951 B-C):

"... it is merely one piece of the relevant material, although it is evidence of a self-serving nature."

There is other material which is normally available, and which was available in some

of the present cases. We refer to statistical material, showing that the percentage of servicewomen who, having been given the option to return to work after childbirth was 46%. As the Employment Appeal Tribunal said in Cannock that statistical evidence is likely to be a good starting point, not only on the question of a return to work, but also on the question of length of service. Such evidence should not be overlooked or ignored, as the Ministry of Defence claim happened in some of the cases.

However, if an Industrial Tribunal carries out the assessment in a proper way, taking all relevant considerations into account, and disregarding matters that are irrelevant, there should be no reduction made from the assessment of compensation which follows from that exercise, simply because the amount seems excessive. If it is established that an individual has suffered a substantial loss, then it is the duty of the Tribunal to award that loss as compensations so as to ensure that the loss and damage actually sustained as a result of the discriminatory dismissal is made good in full in accordance with applicable national rules. (See Marshall v Southampton and S.W. Hants H.A. (Teaching) No. 2 Case C-271/91 [1993] ICR 893 at page 932). When the Employment Appeal Tribunal in Cannock enjoined the Industrial Tribunals to have a due sense of proportion, they were not suggesting that that principle should be overlooked, but that Industrial Tribunals should make sure when calculating the total award, that it was "a sensible and just reflection of the chances which have been assessed" (page 950H). This was sound advice to the Industrial Tribunals to keep their feet on the ground, and to bear in mind that they are not dealing with people who have been incapacitated by grave injury from following any employment at all. The sense of proportion to which reference was made, should apply to the assessment of the percentage to be adopted as a reflection of the likelihood of a material event occurring.

It has been acknowledged before us (and could not have been disputed) that the Employment Appeal Tribunal is entitled to lay down guidelines for the assistance of the Industrial Tribunals. In another context, the Employment Appeal Tribunal has made it clear that guidance which it seeks to give is not to be regarded as if it were a rule of law or an Act of Parliament. (See Williams v Compair Maxam Ltd [1982] IRLR 83 and Rolls Royce Motors Ltd v Dewhurst [1985] IRLE 184). Such guidance need not be rigidly adopted, and it does not necessarily follow that if an Industrial Tribunal chooses not to do so, its decision will be categorised as perverse. Nevertheless, as we have said, it is to be hoped that such guidelines as we were given in Cannock will be followed, in order that there should be consistency of approach among Industrial Tribunals. In general, it is desirable that guidelines should not be departed from unless there are exception circumstances for doing so.

We now turn to the individual cases.


 


JUSTICE TUCKER: This is Mrs Rowley's appeal from a decision of the Industrial Tribunal sitting at London (South) on 7th November and 19th December 1994. The Tribunal found that there was only a 20% chance of her returning to work in WRNS after the conclusion of her maternity leave, and only a 20% chance of remaining for more than six months, though they also took the view that she would have left at the end of December 1986, which was at the end of that period of six months.

Mrs Rowley was born on 18th November 1959, so she is now 35. She had had other jobs before joining the Royal Navy on 6th November 1980, i.e. when she was nearly 21. She joined for a period of nine years, though she said she would possibly have served up to 22 years in total. She trained as a Radar Operator and became an acting Leading Wren on 1st December 1984.

She had married a sailor in December 1982. Her husband remained in the Royal Navy until the end of his engagement in 1987 - and was at sea throughout that time.

The Appellant became pregnant in 1985, and it was a quirk that she was still in the services when her baby was born two weeks early on 20th November 1985. She was discharged on 30th November 1985.

She gave evidence that if she had had the opportunity she would have have returned to work in the Royal Navy. She first found other work in December 1986, as a full-time Clerical officer for the Ministry of Defence at Devonport. She employed a child minder.

Unfortunately, the marriage became unhappy, and there was a divorce. However, the Appellant remarried in March 1992, and gave birth to a second child on 5th February 1993. After the birth she became employed in August 1994.

Statistical evidence was placed before the Industrial Tribunal by both sides but they disregarded it as being unreliable and unuseful. It is right to observe that Mr McCormick had invited them to take this course so far as the Respondent's statistics were concerned.

The Industrial Tribunal concluded that the Appellant would have elected to take maternity leave and would have returned to work in June 1986. As has been said, they found that there was only a 20% chance of her returning to work in the WRNS. They arrived at this decision for a number of reasons which they set out in Paragraph 33 of their Extended Reasons.

The first Ground Appeal is that the finding is one to which no reasonable Tribunal could have come to on the evidence.

Mr McCormick on behalf of the Appellant (who also appeared before the Industrial Tribunal) submitted that where, as here, the Employment Appeal Tribunal is considering not a question of whether one thing or another would have occurred, but is making an assessment of a chance of something happening, on what he described as a sliding scale of chances, then if even only one of the factors behind the reasoning can be shown to be perversely considered, the case ought to be remitted to the Industrial Tribunal for reconsideration. We agree with this - with the gloss that the perverse factor must obviously be more than de minimis.

Mr McCormick's complaints about the Industrial Tribunal's reasoning in Paragraph 33 were that the Industrial Tribunal refers only to a number of negative factors, and appears to take no account of a number of positive factors which were in the Appellant's favour. Thus there is no reference to the fact that she was working up to the date of the birth, or to the couple's financial difficulties, or to the great advantage of her remaining in employment.

And complaint is made about three specific matters.

First, the reference to the Appellant having taken a short career break after the birth of her children. It is pointed out that by the time the second child was born, the Appellant had been divorced, had re-married, and had a husband who was earning more than she was, and no longer had a career. So, it was submitted the fact of that career break was an irrelevant matter which should not have been taken into account when assessing the likelihood of her resuming her career in the Services. Moreover, it was submitted that the finding that the Appellant deliberately took a career break was inconsistent with her evidence, and with the Tribunal's finding in Paragraph 36 that the Appellant had made reasonable efforts to mitigate her loss.

Second, the Tribunal's finding that they did not accept the Appellant's evidence that she considered at the time that it would have been easy and/or affordable to find child care. Mr McCormick told us, and this was not disputed, that the Ministry of Defence had not suggested that child care was not affordable. He observed that no reason has been given for not accepting that evidence. He submitted that it was an affront to common sense and that this was another perverse factor in the Tribunal's reasoning.

Third, the reference to substantial uncertainty about where she would have had to serve. Here Mr McCormick conceded that he was at a disadvantage in not having the Notes of Evidence, but he told us that the Appellant when cross-examined had said that she did not mind being separated from her husband. He was in any event at sea, and the marriage had become unhappy. It was submitted that the possibility of a new posting ought not to have been taken into account in considering the prospects of a return to work in the WRNS.

The second ground of Appeal is that the finding of fact at Paragraph 34 of the Reasons, that the Appellant would have left her employment at the end of December 1986 is inconsistent with the approach required by Cannock and is a finding which no reasonable Tribunal could have made on the evidence.

We have some difficulty in following the reasoning in this Paragraph. In one sentence the Industrial Tribunal find that the Appellant had only a 20% chance of remaining for more than six months. In the next sentence they take the view that she would have left at the end of December 1986. We cannot reconcile these two findings, despite Mr McManus's ingenious suggestion that the Industrial Tribunal were following the advice in Cannock to look at what actually happened and that what the Industrial Tribunal were saying was that there was only a negligible chance that the Appellant would have stayed on after December 1986.

Mr McManus was not in a position to suggest that the absence of the Notes of Evidence itself prevented a challenge on the grounds of perversity. But he submitted that in this case they were crucial. On the other hand, where we have Counsel who appeared at the Tribunal telling us, for example that certain evidence was unchallenged, and the Respondents do not dispute it, we feel that we are entitled to rely on what Counsel tells us .

Mr McManus submitted that when the decision is looked at as a whole it could not be said to be perverse. He submitted that attacks on individual facts should not be allowed.

We bear those, and Mr McManus's other submissions, contained in his Skeleton Argument, well in mind. We remind ourselves we cannot and must not interfere with a decision of an Industrial Tribunal simply because we disagree with it. But we are bound to say that we find the Grounds of Appeal are made out. We take the view that this decision is irrational and plainly wrong, and that it cannot stand.

Accordingly, we allow the appeal, and we remit the case to a differently constituted Tribunal for reconsideration and re-assessment of the chances of the Appellant returning to work in the Services, and of the period for which she would have been likely to serve.