United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 96_95_1306

Appeal No. EAT/96/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13th June 1995

Judgment delivered on 24th July 1995

THE HONOURABLE MR JUCTICE TUCKER

MRS T MARSLAND

MR T C THOMAS CBE

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MRS V BENNETT          APPELLANT

THE MINISTRY OF DEFENCE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR P FORTUNE

(of Counsel)

Adams Blair Cox

29/31 Guildhall Walk

Portsmouth

PO1 2RY

For the Respondents MR R MCMANUS

(of Counsel)

The Treasury Solicitor

Room 449

Lacon House

Theobalds Road

London WC1X 8RY


 


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 Mrs Bennett from a decision of an Industrial Tribunal sitting at Exeter on 5th, 6th and 7th December 1994. The Tribunal assessed her chance of returning to work at 75%, they accepted that she would have been promoted to Petty Officer on 1st March 1990, but they considered that a fair cut off was 20th November 1992.

The grounds of appeal are that the Tribunal erred in law in a number or respects. There is no error of substantive law as such. The Appellant can only succeed if she can show that the decision was perverse.

In this case the Chairman's Notes of Evidence were obtained, and we considered them.

Mrs Bennett was born on 31st May 1963, so she is now 32. Both her parents had been in the forces. She joined the WRNS at 17½, and embarked on a nine year engagement from her eighteenth birthday, 31st May 1981. She trained as a writer, and became a Leading Wren, and had been an Acting Local Petty Officer for a couple of periods.

She served in Northern Ireland for a time, but was unhappy there, and psychiatric problems arose. She went to Hong Kong, and then returned to the United Kingdom. In July 1986 she gave Notice to Leave, but withdrew that in November of that year.

Mrs Bennett married a sailor in March 1988. She was dismissed on account of her pregnancy on 24th August 1989.

The Tribunal found that she had excellent reports, had exceptional efficiency, and that there would have been no problem on promotion. Against that, the Tribunal had regard to her psychiatric problems.

After her discharge, Mrs Bennett followed her husband to Scotland and Gibraltar. She had a second child on 17th January 1993. They returned to England in April 1993. She sought work actively and the Tribunal found that there was no question of any failure to mitigate her loss by not working.

The Tribunal were provided with statistics, which they took into account, though commenting that they were somewhat unreliable and that they could not be too dependent upon them.

Mr Fortune raised a number of issues before us.

First, that the Tribunal were wrong in law to make a gender based assumption that the Appellant would have left the WRNS on or about the birth of her second child on 30th November 1992. It was submitted that the only reasons advanced by the Tribunal were that the Appellant would have had a somewhat nomadic life, which would have led to complications as the children got older. It was submitted that the finding of a "somewhat nomadic life" was not supported by evidence.

In our opinion, this is a flimsy argument upon which to base an assertion that the Tribunal made a perverse finding, and we reject it. The Industrial Tribunal were entitled to call upon such experience as they had and were fully justified in making the finding which they did. It was a conclusion which was entirely permissable.

Next it was submitted that the Tribunal attached too much weight to the statistics. But as we have recorded, they treated such evidence with considerable reserve.

It was submitted we think with greater force that the Tribunal failed to have regard to the fact the Appellant would have been entitled to a Re-Settlement Grant of £5,256 on completion of 12 years reckonable service, i.e. on 30 May 1993, that they should have found that there was a strong chance that the Appellant would have continued until that date, and that the cut-off date of 30th November 1992 was purely arbitrary.

This submission relates to the Tribunal's finding as to the possible duration of service. At paragraph 30 of their decision they say this:

"We accept that she would have extended her engagement from nine years, but the question then is would she have reached the fourteen years. The nine years would have ended May 1990 and the fourteen May 1995."

By adopting a cut-off date on 30th November 1992, it looks as if the Tribunal took half the extra five year period as being the probable length of service after May 1990.

We consider that the Industrial Tribunal did not give any proper consideration to what we regard as a strong probability that the Appellant would have stayed on until the end of the twelve year period, i.e. until 30th May 1993, and the Tribunal were wrong to conclude that the cut-off date would be 30th November 1992.

There is another matter which causes us concern, and that is the reference by the Tribunal in paragraph 30 to the likelihood that the Appellant would not have remained after the birth of her second child Nancy. Mr Fortune described this as a gender-based assumption, and a pre-determined view, that no woman would go on beyond the birth of her second child. We think there is justification in this criticism, and that the Tribunal were misdirecting themselves in this passage. They were wrong to predicate more than one child.

In our opinion, the Tribunal's decision as to the duration of the Appellant's service, and as to the selection of the cut-off date, was flawed in the respects we have mentioned.

In Paragraph 6(v) of the Notice of Appeal it is said:

"In calculating the amount of compensation payable to the Appellant the Tribunal wrongly deducted the Appellant's post discharge earnings after reduction of the Appellant's lost earnings to accord with their finding that the Appellant had a 75% chance of remaining in the Royal Navy."

In the Respondents' answer this ground was conceded. However, by leave of Morison J. on 22nd May 1995 the answer was amended so as to remove that concession, but such leave was said to be without prejudice to the Appellant's right to contend at the substantive hearing that the Ministry of Defence should not be permitted to withdraw its concession.

Having heard argument on the point, we permitted the withdrawal. We were told that the admission was make by mistake; it was on the file for a short time only and we cannot believe that any prejudice will be caused to this Appellant or to any others. In any event we would not have been bound by such a concession, which was plainly wrong.

This ground of appeal relates to the deduction of the Appellant's post discharge earnings in full. For reasons which we set out in the appeal of Mrs Bristow, we consider that his was the proper course to take. It accords with the analogous situation in Derwent Coachworks to which we referred in that appeal. There is nothing in this ground of appeal.

There was a Cross-Appeal by the Appellants but it was not pursued, and so for the reasons we have set out, we allow the appeal to the extent that we remit the case to a differently constituted Tribunal (if need be) for reconsideration of the question of the duration of service.