United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 468_95_0311

Appeal No. EAT/468/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3rd November 1995

Before

THE HONOURABLE MR JUSTICE MAURICE KAY

MR A C BLYGHTON

MRS R CHAPMAN

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THE MINISTRY OF DEFENCE          APPELLANTS

MRS S L DONALD          RESPONDENT

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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 Donald was born on 3rd July 1956 and enlisted in the Womens Royal Army Corps on 9th October 1973 on a 22 year engagement. On 8th August 1975 she was promoted to acting lance corporal; on 2nd February 1976 to lance corporal; on 10th September 1976 to acting corporal; and on 2nd June 1977 to corporal. She was posted to Germany in July 1978. In July 1979 she discovered she was pregnant. She was married in following month. On 3rd October 1979 she was dismissed by reason of her pregnancy. She gave birth to her first child on 5th February 1980. Later that year her husband left the Army on 8th December 1980 the family returned to the United Kingdom. The second child was born on 26th June 1982. The marriage was dissolved in 1990.

Mrs Donald's claim for compensation came before the Industrial Tribunal in Birmingham. The Tribunal found a 100% chance that Mrs Donald would have taken maternity leave in relation to the birth of her first child; a 90% chance that she would have returned to service after maternity leave; a 50% chance that she would have taken maternity leave before the birth of the second child; and 25% chance that she would have returned to service after the birth of her second child and proceeded to complete her 22 years.

The Ministry of Defence's Notice of Appeal recited numerous grounds of appeal. However, before us Mr McManus has confined himself to three such grounds.

(a) Cumulative chances

On behalf of the Ministry of Defence Mr McManus submitted that the Tribunal carried out the calculation by applying the percentage chance at each state in isolation from the preceding stage. That, he submitted, is a misdirection which leads to over compensation. The submission is that the chance at each stage should be assessed by multiplying the percentages cumulatively so that the figure applied at each stage is a percentage of a percentage. It will be recalled, that we have seen fit to allow an appeal by the Ministry on a similar point in relation to Mrs Wheeler. The position here is somewhat different. In paragraph 14 of the decision the Tribunal stated:

"As to the award we have when completing our calculations stood back and used a due sense of proportion and we set out the award. This required the Tribunal to deliberate at length at each stage of its percentage chance consideration and to pay due regard to its findings of percentage chances at the preceding stage. We appreciate there is a school of thought that would calculate such chances on a percentage of a percentage but had we adopted such a method we would not have reached a just and sensible award and would have had to reappraise our chance findings."

On behalf of Mrs Donald, Miss Rose submits that the Tribunal explained in the foresaid passage that the percentages selected by it were selected on the basis that they were not applied cumulatively. It is clear, she submits, that if the Tribunal applied cumulative percentages, the percentages would have been larger. In our judgment the proper approach is for the Tribunal first to quantify the percentage chance or chances. They should do that before considering the consequential arithmetic. Having arrived at differential percentage chances, it is then incumbent upon the Tribunal to make a cumulative calculation on the basis of a percentage of a percentage. This the Tribunal did not do in the present case. What they did do has resulted in a lack of clarity as to their intentions. In our judgment the submission made on behalf of the Ministry of Defence on this point is well-founded. The Appeal will be allowed on this ground. The consequence is that the matter will have to be remitted to the Industrial Tribunal for it to go through the process in the manner we have described. It is not for us to second guess whether the eventual calculation will result in a different final figure.

(b) Misdirection on mitigation

In paragraph 9 of the Decision the Tribunal stated:

"Any applicant is under a duty to mitigate or reduce her loss as far as she is able. It is for the employer to show that she has failed to do so. They have failed to adduce evidence by cross-examination or by evidence adduced to show that failure."

There is then a reference to the Banco de Portugal and a misquotation of Lord MacMillan's speech. The Tribunal continued:

"We are not satisfied that this applicant has done everything that is reasonable to mitigate her loss. Therefore although it seems likely that there may have been a failure on her part to take active steps to mitigate her loss we have no evidence on the basis of which we can arrive at a figure which reflects that failure to mitigate and therefore we make no finding on it."

Mr McManus submits that, properly construed, this paragraph amounts to a finding of failure to mitigate but a refusal to fill in evidential gaps by the application of the Tribunal's own knowledge of labour market conditions at the relevant time and place. In our judgment, that is not a proper construction of paragraph 9 of the decision. It is a construction which fails to take account of the burden of proof on this issue. It was not for Mrs Donald to establish that she had done everything reasonable to mitigate her loss. It was for the Ministry of Defence to prove that she had not. The highest that it can be put from the Ministry's point of view is that the evidence left the Tribunal with the feeling or suspicion ("it seems likely") that there may have been a failure to mitigate. However, having failed to adduce evidence by cross-examination or by themselves adducing evidence to prove that Mrs Donald had not taken reasonable steps to mitigate her loss, the Ministry themselves created an evidential vacuum. Just as in some of the other cases with which we have dealt, we do not consider it appropriate here for the Ministry to expect the Tribunal to fill this vacuum. In our judgment the refusal of the Tribunal to apply a discount in respect of failure to mitigate has arisen entirely from the manner in which the Ministry conducted its case and from its failure to prove what it seeks to assert.

(c) Misdirection as to calculation

It was in relation to this appeal that we received the fullest submissions on the question whether deductions from loss of earnings should be made before or after the application of the percentage figure for loss of a chance. We canvassed this issue fully in the general part of this judgment preceding our consideration of the individual appeals. We repeat that, notwithstanding the judgment of this Appeal Tribunal in Bristow, we do not consider the Ministry's submissions to be well-founded.

It therefore follows that, in relation to the case of Mrs Donald, the appeal succeeds in relation to Ground (a) but fails in relation to grounds (b) and (c).

At the conclusion of the hearing of this appeal, Miss Rose on behalf of Mrs Donald made an application for costs "in any event". She submitted that the original Notice of Appeal sets out numerous grounds and that most of them were wholly unarguable. She referred us to correspondence on 24th October 1995 when her instructing solicitors had pointed this out to the Treasury Solicitor who declined to go into detail regarding how the appeal would be conducted. Miss Rose's "in any event" application for costs is limited to costs incurred in relation to those grounds of appeal set out in the Notice but which have not been pursued. Such costs include part of the preparation of the respondent's skeleton argument and part of the preparation for the hearing at which final abandonment of the other grounds was only notified on the morning. Whilst we have some sympathy with Miss Rose's submission, we have come to the conclusion that the history does not disclose unreasonable conduct on the part of the Ministry of Defence and the present application for costs is dismissed.