United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 94_95_0611

Appeal No. EAT/94/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6th 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 GEORGE          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 George was born on 2nd September 1958. On 3rd September 1976 she joined the Womens' Royal Army Corps on a 22 year engagement. She was bandswomen. In August 1981 she married a fellow Army musician. Three months later she discovered that she was pregnant. She was very anxious to stay in the Army and asked for advice about an abortion. However, she was persuaded to continue the pregnancy. On 10th February 1982 she was discharged by reason of the pregnancy. Her first child was born in July 1982, by which time she was living in Germany to which country her husband had been posted. In December 1984 they moved from Germany to Chester. Mrs George gave birth to her second child on 13th November 1985. In January 1988 they moved to Berlin in pursuit of Mr George's latest Army posting. Subsequent postings took them to Northern Ireland in February 1990 and Hounslow in February 1992.

Her application for compensation came before the Industrial Tribunal at London (South). Where the Tribunal was chaired by Professor R W Rideout. The Tribunal came to the conclusion that Mrs George would certainly have returned to work after the birth of her first child if there had been provision for maternity leave. So far as the remainder of her 22 year engagement was concerned, a majority of the Tribunal concluded that there was a 75% chance that she would have completed the whole of it. The dissentient view of the Chairman was that the appropriate figure for that period was 40%.

On behalf of the Ministry of Defence, Mr McManus has put forward six grounds of appeal.

(a) 100% chance of return

Mr McManus submitted that the finding that Mrs George would certainly have returned to work initially after a period of maternity leave was perverse in light of the statistical evidence, the findings of the Tribunal itself and the evidence before it. It is true that no mention is made of the statistical evidence in paragraph 4 of the Decision where the finding of certainty or 100% is set out. On the other hand, it is abundantly clear from paragraph 5 of the Decision that the statistical evidence was considered by the Tribunal when deliberating upon the 22 year period. In our judgment there was evidence upon which the Tribunal was entitled to make its 100% assessment in this case. We have already referred to the evidence about her contemplation of an abortion and the finding that she was "very anxious to stay in the Army". It is also apparent from paragraph 5 that at least the majority of the Tribunal considered that Mrs George "was committed to Army life". As with the other cases, evidence about what she did in fact do after discharge does not necessarily mean that she would have done the same if there had been no discharge. In our judgment the Tribunal was entitled to make this assessment of a 100% chance in respect of the initial period.

(b) Assessment of the chance of completion of engagement at 75%

It goes without saying that the mere fact that the Tribunal lacked unanimity of this point is not an indication of perversity. Indeed, there is some indication that the Chairman himself, whilst dissenting, did not consider his colleagues to be perverse since he states in paragraph 5: "All these factors are arguable." The majority proceeded on the basis of a finding that Mrs George was committed to Army life. All three members of the Tribunal had regard to the statistical evidence as a starting point. The Chairman dissented because he was more influenced than the majority by evidence that turnover in the band was unusually high. The fact that he placed greater weight on this aspect of the evidence does not necessarily mean that the majority was perverse in attaching less weight. In our judgment there was evidence in this case which entitled the Tribunal majority to make the assessment it reached.

A noticeable feature of this Decision is that it seems to be less detailed in its reference to specific evidential findings than the other Decisions which we are having to consider. We have seen a copy of the Chairman's Notes of Evidence on certain aspects of mitigation of loss. This followed the making of a selective order for the production of Notes of Evidence. Mr Elias QC, on behalf of Mrs George seeks to make the fundamental point in relation to a number of the grounds of appeal that, to the extent that they alleged perversity, they are unsustainable in the absence of full Notes of Evidence. Whilst we have attempted in this and the other appeals to do the best we can without Notes of Evidence where they have been absent or partially absent, we do consider that Mr Elias QC is particularly justified in taking this point in relation to this ground of appeal. If we had been in any doubt about the evidential justification of the Tribunal's assessment, we would have felt compelled to dismiss the appeal on this point by reason of the absence of Notes of Evidence.

(c) Promotion prospects

Paragraph 6 of the decision reads as follows:

"In the view of all the members of the Tribunal compensation for the applicant should be assessed on the basis that she would have reached the rank of Lance Corporal after 10 years service. There is no evidence upon which the Tribunal can reasonably assess a chance of further promotion of Corporal."

It is submitted on behalf of the Ministry of Defence that this finding was perverse and that "there was no evidence" which could support it. We repeat what we have just said about the absence of Notes of Evidence. Again, this is a ground of appeal in respect of which we consider that Mr Elias QC is completely justified in contending that the ground is unsustainable in the absence of Notes of Evidence. We observe that in the passage quoted the Tribunal itself referred to a lack of evidence in relation to further promotion. It would be somewhat odd if there had been a similar lack of evidence in relation to the minimal promotion referred to in the previous sentence. This ground of appeal must fail.

(d) Misdirection on promotion prospects

The submission of Mr McManus on this point is that the finding that compensation "should be assessed on the basis that she would have reached the rank of Lance Corporal after 10 years service" is a finding of fact rather than the assessment of a chance in accordance with Cannock. We do not agree. It is clear from the following sentence that the Tribunal was concerned about the assessment of "a chance" of further promotion and in our judgement, the finding in respect of promotion to lance corporal amounts to neither more nor less than an assessment of a 100% chance that such a minimal advancement would have been achieved after 10 years. This ground of appeal therefore fails.

(e) Misdirection on mitigation

In paragraph 7 of its decision the Tribunal considered whether Mrs George could reasonably have been expected to have done more than she did to secure employment for the first five years after the birth of her first child. In the course of that passage the Tribunal stated:

"In the view of the Tribunal the market value of an applicant with three young children is very low indeed."

As in the Hunt and Wheeler cases, Mr McManus submits that the Tribunal has allowed its assessment to be distorted by making a gender based assumption. Although the language here is different from the language used in Hunt and Wheeler, in our judgment the effect is precisely the same. The Tribunal was not basing its decision on a gender based assumption of its own but was taking into account, as it was entitled to do, its knowledge and experience of the difficulties in obtaining employment experienced by women with young children. As in the other cases, this ground of appeal fails.

(f) Perversity in relation to mitigation

Elsewhere in paragraph 7 of the decision the Tribunal stated:

"The Tribunal has also to assess the validity of the actions of the applicant in mitigating her loss. In the view of all the members of the Tribunal she could not reasonably be expected to do more than she did to secure employment for the first five years after the birth of her first child. It is perfectly true that for much of that time she was fit enough to work and, had she remained in the Army would have worked. The issue of whether she could work is not in question, what the Tribunal has to consider is whether she could reasonably have obtained other employment."

It is at this point that the Tribunal made its reference to the market value of an applicant with two young children. The Tribunal then continued to express the opinion:

"That by the date of this hearing the applicant should have reasonably built up her earning capacity to full-time employment at a rate of at least £8000 per year. It seems to the Tribunal that the best way to assess the ascending income is to take a median of £4000 and multiply it by the period of 7 years. In the view of the Tribunal, therefore, the applicant should have earned not less than £28000 in alternative employment by the date of this hearing and that amount is to be set off against her loss of income in her Army post."

The submission made on behalf of the Ministry of Defence is that this paragraph is perverse or, alternatively, contains a misdirection. The alleged perversity was put in the form of a failure to have regard to the fact that there was no evidence that Mrs George had attempted to pursue a career or full-time work following the birth of her first child, that she had not sought to re-enlist in the Army; and that she had followed her husband on postings abroad. This of course refers to the period of five years following the birth of the first child. Mr George gave evidence to the effect that his wife was fit to work from November 1982 and "made every attempt to find a job". During the 2¹/₂ years in Germany there was evidence to the effect of a lack of jobs and a lack of child minding facilities for persons in Mrs George's position. She also had language shortcomings. Following the move to Chester, after a settling period of six weeks Mrs George gave evidence to the effect that she then started to look for work through the local papers and via the Job Centre. She made some applications and had some interviews. Soon afterwards she became pregnant again and was advised to take things easy because of difficulties which had arisen in the first pregnancy. We have considered the Notes of Evidence. It is conceivable that other Tribunals might have found some failure to mitigate during that initial five year period. However, we do not feel able to say that this particular Tribunal was perverse in concluding that there was no such failure to mitigate during that period.

Mr McManus further submits that the Tribunal misdirected itself in law by deciding to deduct notional earnings on the basis of a gradually ascending earning capacity. In our judgment, having accepted that the applicant had failed to mitigate her loss between 1987 and 1994, the Tribunal was entitled to approach the quantification of the consequences of such failure in the way it did.

Mr McManus further submitted that the finding about failure to mitigate and its quantification should not have ended at the date of hearing but should have been projected and applied to future loss. This submission is clearly correct. On this limited basis the present ground of appeal technically succeeds. This does not necessitate a remission back to the Industrial Tribunal. It is sufficient if we indicate that the finding is to apply to future loss. Mr Elias QC has stated that he is content with such an indication.

Before leaving the case of Mrs George we ought to refer to a letter which she wrote on 3rd November 1992. Although it was stated to be "without prejudice" we understand that she waived any privilege in relation to it at the Industrial Tribunal. In it she referred to her claim for loss of earnings as being "up to mid-September 1985 when I would have been leaving the Forces to have my second child". The Ministry of Defence has sought to attach significance to this letter in relation to the assessment of the chance of completing the 22 year engagement. In our judgment it can have had no bearing on that assessment. It was the view of all three members of the Industrial Tribunal that to treat the birth of the second child as an event terminating compensation was "not a viable proposition because it seems to us very unlikely that the applicant would have had a second child had she been permitted to remain in the Army." In our judgment the Tribunal was entitled to treat that letter as something of a red herring.

By way of summary, the Ministry of Defence's appeal in relation to Mrs George fails save for the small matter of future loss and mitigation to which we have referred.