United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 250_95_1206

Appeal No. EAT/250/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12th June 1995

Judgment delivered on 24th July 1995

THE HONOURABLE MR JUSTICE TUCKER

MRS T MARSLAND

MR T C THOMAS CBE

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MINISTRY OF DEFENCE          APPELLANTS

MRS K PARTRIDGE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR R MCMANUS

(of Counsel)

The Treasury Solicitor

Room 449

Lacon House

Theobalds Road

London WC1X 8RY

For the Respondents MISS D ROSE

(of Counsel)

Steele & Co.

2 The Norwich

Business Park

Whiting Road

Norwich

NR4 6DJ


 


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.

MR JUSTICE TUCKER: This is an appeal by the Ministry of Defence from a decision of an Industrial Tribunal sitting at Bury St. Edmunds on 5th January 1995. The Tribunal found that there was no realistic chance that the Respondent would not have remained in the Army until 1987 or been promoted to the rank of Corporal by April 1985; that there was a 75% chance that she would have been promoted to the rank of Sergeant in April 1988; and that if promoted there was an 80% chance that she would still be serving in the Army.

Mrs Partridge was born in September 1962, so she is now 32. She joined the Army on 8th January 1980 when she was 17. She came from a services background. She is described by the Industrial Tribunal as an outstanding recruit - the best student in her trade training. She gained very quick promotion to Acting Lance Corporal in October 1981. She had married her husband in May of that year - he was a soldier in RCT. The Industrial Tribunal found that she loved her job and that it was a way of life.

In May 1982 the Respondent discovered that she was pregnant. She was insulted and hurt by the words and attitudes of some of her superiors. The Tribunal rightly reflected this in their award of damages for injury to feelings.

Mrs Partridge was discharged from the Army on 16th July 1982.

The Industrial Tribunal found that that there was no realistic chance that she would not have stayed in the Army until June 1987. In other words, they found that the prospect of her returning after the birth of her child was 100%, or certain. As for promotion, they were satisfied that she would have been a Corporal by April 1985, and that if she had stayed on there was a 75% chance of promotion to Sergeant by April 1988. As for length of service, the Industrial Tribunal assessed the applicant's chance of remaining in until "today's date" i.e. January 1995 at about 80% if she had been promoted to Sergeant.

The Tribunal reminded themselves of the guidance in Cannock. They cautioned themselves against attaching too much weight to the evidence given by the applicant. Nevertheless, they found her to be a woman of remarkable determination, and as demonstrating a depth of character and ability that is rare. They found her to be both honest and accurate. They bore in mind that she had not served for a great length of time, and this of course is highly material, since it might be considered to be a small base on which to found a long-term assessment of her future prospects. However, the Tribunal were satisfied that the applicant was quite remarkable and exhibited exceptional qualities.

The Appellants contended that the Tribunal's findings were perverse. The Grounds of Appeal do not expressly refer to the finding that the Respondent would certainly have returned to the Army, though this point was argued before us, and we consider it. The reasons for the perversity are, it was argued, the comparatively short period of service (2½ years) before the dismissal, which rendered any prognosis for the future entirely speculative. As we have observed, this was a factor which the Tribunal were careful to bear in mind.

The Appellants also contended that the Tribunal paid far too much attention to the Respondent's own evidence, and far too little, or no attention to statistical evidence. It is true that they made no reference to this evidence when they set out their conclusions in Paragraph 29 of their decision. The statistics are those referred to in Cannock at page 951 and 952, that the percentage of women, who having been given the option, return to work after childbirth is 46%, and that only 12% of other ranks serve 22 years.

Moreover, it was contended that the decision is perverse also in that the Tribunal failed to take into account some features about the Respondent herself, in particular that she now has two children who were born quite close together, that her husband left the Army 1987 and therefore she would not wish to be posted away from him and that she had never had a driving career in civilian life that her commitment to such a career in the Army was accordingly open to doubt.

The Respondent had the advantage of being represented by Miss Dinah Rose, who pointed out that the Tribunal did have the statistics before them (though some had been mistyped in Paragraph 23), but that there are flaws in them, for example in that some relate back to the situation when servicewomen were aware that if they wanted children they would have to retire from the Armed Forces. In any event this is not a case where the Tribunal were in ignorance of the statistics. It is clear to us that they found the Respondent to be such an impressive witness that they preferred to place reliance on her evidence rather than on the figures. Were they entitled to do so, rather than to apply the statistics? Was their approach in conflict with the guidelines? In particular, can the Tribunal be categorised as having behaved irrationally or as having reached a decision which no reasonable Tribunal could reach? We do not feel able to apply these descriptions to the Tribunal's decision.

We took the view that we could entertain the appeal without seeing the Chairman's Notes; and we accordingly do so.

We make it plain that we have considered the Appellants' arguments not only in relation to the Tribunal's assessment of the likelihood of a return to service, but also to the other assessments relating to promotion and length of service. We bear in mind that the upshot may be that the Respondent will be awarded a substantial sum of compensation. But the Tribunal found, as in our view they were entitled to do, that Mrs Partridge was a quite exceptional woman. Therefore it is not surprising that she should be awarded what might seem to be an exceptional sum.

On the other hand, this is not such a rare or exceptional case of the kind referred to by Mummery J. in Stewart. We acquit this Tribunal of the accusation of perversity. It cannot be said of this Industrial Tribunal that in reaching its conclusions it arrived at a decision which no reasonable Tribunal properly directing itself could have reached - it was not irrational - it could not possibly be said to be outrageous, neither could any of the other epithets be applied to it which would be necessary if we were to be in a position to impugn it.

We repeat, it is not sufficient for us to feel that we might have reached a different conclusion. The burden on an Appellant relying on an allegation of perversity is a heavy one. In our opinion that burden has not been discharged, and accordingly this appeal is dismissed.