United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 380_95_1312

Appeal No. EAT/380/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 December 1995

THE HONOURABLE MR JUSTICE KEENE

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MISS MAXINE TATE          APPELLANT

MINISTRY OF DEFENCE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant

For the Respondents


 


RESERVED JUDGMENT

MR JUSTICE KEENE:

BRIEF CHRONOLOGY

19 September 1956 Date of Birth

April 1976: Joined the Women's Royal Air Force on "local engagement"; extended 1977 and 1978.

June 1979: Elected to join as a regular on a nine-year engagement.

September 1979: Discovered that she was pregnant.

28 November 1979: Discharged from the Service because of her pregnancy.

5 January 1980: Her daughter was born.

30 January 1992: Originating Application to Industrial Tribunal.

15 February 1995: Decision by Industrial Tribunal on compensation.

The Appellant, Maxine Tate, had joined the Women's Royal Air Force in April 1976 at RAF Finningley on what was known as a "local engagement". This meant that her service, as long as it continued on a local basis, would be only at RAF Finningley. She extended this local Service on two occasions for a further year, in 1977 and 1978. At some time in June 1979, the Appellant decided that she would want to make the RAF her career on a permanent basis and she therefore elected to join as a regular on a nine-year engagement. This meant that her service from April 1976 was deemed to be continuous. She had been serving in a clerical capacity and it became clear that she was constrained to a clerical career.

At about the same time as the Appellant extended her service, she became pregnant. She was not aware of this: the pregnancy came to her knowledge as something of a surprise. She discovered it in about September 1979. As the Industrial Tribunal indicated, this required her to think very seriously about her future. She was unmarried and has remained so since that time.

She was discharged from the service as from 28 November 1979 as a result of her pregnancy in accordance with the Ministry of Defence policy then operating. After discharge she continued to live with her parents as she had done all the time that she was with RAF Finningley. She did various employments but nothing on a permanent basis until 1983. Then she was able to find full-time employment as an administrative assistant at RAF Finningley, doing in essence the same job that she was doing in the RAF on a civilian basis.

In 1992 she claimed compensation for her dismissal, on the ground that it was contrary to the Sex Discrimination Act 1975 when read with the Equal Treatment Directive. Liability was in due course admitted by the Respondent. The assessment of the amount of compensation due to the Appellant came before an Industrial Tribunal sitting at Leeds on 30 January 1995.

Not surprisingly an issue arose at the hearing before the Industrial Tribunal as to what would have happened, had she not been dismissed because of the Ministry of Defence's unlawful policy. The Appellant argued that she would have taken maternity leave, had it been available in 1979, and that there was a high chance that she would then have returned to the Service and remained for the nine years, and a good chance that she would have remained thereafter. The Respondents contended that the chances were that the Appellant would have concluded that the taking of maternity leave and returning to work would not have been a viable proposition, given all the circumstances and in particular the financial implications of continuing to work whilst having her child cared for by her mother or by other means. It was also argued that if she had elected for maternity leave, the chances were that after her return to the Service she would not have stayed very long and that there was no possibility that she would have gone on beyond the nine year period.

The Industrial Tribunal said that it had a great deal of sympathy with the Ministry of Defence view that the Appellant was in looking back at the situation in 1979 - 1980 taking a rather rosier view of life than in reality it would have been. They then concluded as follows on the issue as to financial loss:

"10. We are satisfied that had the applicant, in 1979 and 1980, sat down and looked at the reality of the situation, no doubt assisted by her parents, both of whom had a great deal of experience of RAF life, the applicant would have concluded that it would not have been a realistic proposition for her to have continued after the birth of the child. We have to bear in mind that the applicant had never really been away from the family environment, that during her posting at RAF Finningley, because it was local Service, she was able to live at home. The applicant acknowledged that immediately she returned to base after having had her child, the chances are that she would have been posted and that posting could have been some considerable distance away. The applicant would have us believe that she would have been able to cope with this and able to ensure that her relationship with her child prospered, despite the fact that she would see the child, at best, at weekends and during leave periods and possibly, if the posting were some distance away, only at leave periods. We are not convinced that had the applicant looked at this option realistically in 1979 she would have gone for it.

11. We therefore find that in this particular case, taking into account all the information that we have and using the statistics merely as a starting point, we are not satisfied that this applicant would indeed have taken maternity leave as she suggests. Even if we were wrong on that and we were to find that the applicant would indeed have elected for maternity leave, we are not satisfied that once the reality of working on a day-to-day basis, along the lines already described, came to the applicant she would have been able to maintain her career within the Service."

In consequence they found no loss in respect of which the Appellant should be compensated. They also gave a nil award in respect of injury to feelings, largely because of their finding that she would have left the Service upon becoming pregnant, even if the unlawful Ministry of Defence policy had not existed.

Three main points are taken before us on behalf of the Appellant. First it is submitted that the Industrial Tribunal has not approached the issue of financial loss on the proper basis of asking what percentage chance of further service has been lost, but on an "all or nothing" balance of probabilities basis. Mr Segal draws attention to the way in which the Tribunal has addressed the matter in paragraphs 10 and 11, and he contends that it has applied the wrong test. Secondly it is said that, even if the Tribunal did approach this issue on the proper basis of assessing the chance of further service, then its conclusion can only have been that the Appellant had a nil chance of taking maternity leave, of returning to the Service and of completing any further period of service. That, it is submitted, is a perverse conclusion. Finally the conclusion that the Appellant suffered no injury to her feelings is attacked also on the grounds of perversity.

We begin with the ground of appeal which asserts that the Tribunal below adopted the wrong approach to the assessment of financial loss and thereby misdirected itself. In Ministry of Defence v Cannock and Others [1994] ICR 918, the Employment Appeal Tribunal sought to give some general guidance to Tribunals on dealing with cases such as the present one. It pointed out that there had been some confusion in cases argued before Tribunals between the evaluation of a loss of a chance and a "fact" to be determined on the balance of probability. Reference was made to a passage from the speeches in Mallet v McMonagle [1970] AC 166, where Lord Diplock said at page 176:

"The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past the court decide upon a balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."

In Cannock Morison J. suggested certain hypothetical questions which an Industrial Tribunal should ask in order to assess the loss of earnings. In each case those questions were expressed in terms of chances that something would have happened, had it not been for the unlawful dismissal. It is clear from the judgment that the EAT envisaged those chances being formulated as a percentage, although there is no particular reason why they should not be expressed in some other form such as a fraction or in terms of odds.

On this aspect, Cannock has been followed in Ministry of Defence v Hunt & Others (Unreported; judgment delivered 8 December 1995). We respectfully agree with the approach set out in those cases on this point, and both parties in the present case accept that it is the right approach.

The issue on this first ground therefore becomes one of interpretation of the Tribunal's decision. On behalf of the Respondent, Mr Pitt-Payne submits that all that the Tribunal was doing was finding that there was a nil or zero percentage chance of the Appellant taking maternity leave and a similar nil chance of her resuming her career with the Service. He accepts that the final sentence of paragraph 10 and parts of paragraph 11 of the Tribunal reasons are not happily phrased, but he draws attention to the fact that Counsel for both parties had been arguing this aspect in terms of chances as paragraphs 7 and 8 show. He also emphasises the well established principle that decisions of Tribunals are not to be analysed as if they were statutes or contracts. As Neill J. (as he then was) put it in Lewis v John Adamson & Co Ltd [1982] IRLR 233 at 235:

"Their reasoning should not be subjected to meticulous criticism."

It must also be remembered that decisions such as this must be read as a whole and not by scrutinising a single sentence and ignoring its context.

Bearing all that in mind, we are nonetheless struck by the repetition, in the vital paragraphs 10 and 11 of the decision, of wording which is the language of the balance of probabilities and of burden of proof. The Tribunal declared:

"10. ... We are not convinced that, had the applicant looked at this option realistically in 1979 she would have gone for it;

11. ... we are not satisfied that this applicant would indeed have taken maternity leave as she suggests. Even if ... we were to find that the applicant would indeed have elected for maternity leave, we are not satisfied that ... she would have been able to maintain her career. ..."

The Tribunal did not have to be convinced or satisfied that the applicant would have done any of those things. Their approach should have been one of assessing what the chance was that she might have done them. For example they should have been asking themselves whether, even if it was unlikely that she would have taken maternity leave, there was a chance that she would have done so and what that chance was in numerical terms. They did not have to find, as if it were a fact, that she would have done so.

We acknowledge that it is surprising that a Tribunal which, as later paragraphs on injury to feelings show, was conscious of the decision in Cannock, should have approached the assessment of financial loss on an incorrect basis. The mere absence of references to percentages or chances in the vital paragraphs would not by itself have persuaded us that the Industrial Tribunal had applied the wrong test. But when such omissions are combined with the presence of the language to which we have referred, it becomes impossible to read this decision as saying that there was a nil chance of those various events occurring. While this Appeal Tribunal must not use a fine tooth comb on the wording of a decision, there is a limit to the extent to which the wording used can be ignored. That limit has been passed in this case. It is also noticeable that Counsel for the Ministry of Defence before the Tribunal had not been contending for no possibility of the Appellant returning to the Service and staying for a time. His contention had been that she would not have stayed very long, and that there was no possibility that she would have served beyond nine years, that is to say beyond 1985. That makes the construction urged upon us by Mr Pitt-Payne, namely that the Tribunal was finding that there was a nil chance of her staying beyond the end of November 1979, even less likely.

We conclude that the Tribunal did adopt an incorrect approach to the assessment of loss of earnings. It failed to assess the chance which the Appellant would have had of returning to and continuing her service, and consequently it misdirected itself. In those circumstances this matter will have to be remitted for reconsideration. Given the conclusion which we have reached on this first ground of appeal, it becomes unnecessary for us to deal with the Appellant's alternative argument that a finding of a nil chance of maternity leave and a return to the Service was perverse.

The Tribunal's findings on injury to feelings depended heavily on its conclusion that the Appellant would have left the Service, even if there had been no unlawful dismissal. That underlies its finding that she suffered no injury to feelings. Since the conclusion on what would have happened is one which cannot stand for the reasons already set out, it follows that the findings on injury to feelings will also need to be reconsidered.

Both parties agree that, if this matter is to be remitted, it should go back for re-determination by a differently constituted Industrial Tribunal. We agree and shall so order. This appeal is therefore allowed in the terms indicated.