United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 181_95_0311

Appeal No. EAT/181/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3rd November 1995

Before

THE HONOURABLE MR MAURICE KAY

MR A C BLYGHTON

MRS R CHAPMAN

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MRS S ANDERSON          APPELLANT

SECRETARY OF STATE FOR DEFENCE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant

For the Respondents


 


MR JUSTICE MAURICE KAY: 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 there 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 p[art 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.