Appeal No. EAT/497/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7 & 8 November 1994

	Before

	THE HONOURABLE MR JUSTICE PILL

	MRS M E SUNDERLAND JP

	MR G H WRIGHT MBE

MISS C COOKE	APPELLANT

MINISTRY OF DEFENCE	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR MARC BRITTAIN
(OF COUNSEL)
Messrs Marsden Huck
3 Ribblesdale Place
Preston
PR1 3NA

For the Respondents	MR C VAJDA
(OF COUNSEL)
Treasury Solicitor
First Avenue House
Room 320
High Holborn
London WC1V 6NG

	MR JUSTICE PILL:  On 12 September 1978 Ms C M Cooke then 19 years old joined the Womens' Royal Army Corp as a military policewoman on a 22 year engagement.  She was promoted first to lance corporal, then to corporal.  She completed a number of overseas tours and in 1987 was promoted to sergeant in the Special Investigation Branch.  In early 1989 she became pregnant and was discharged from the service on 8 October 1989.  A daughter was born to her on 17 December 1989.  

	Miss Cook has not since pursued an application for re-engagement to the service.  By an application made on the 28th January 1992, she claimed that she had been subjected to unlawful sexual discrimination, in that she had been discharged compulsorily from the Womens' Royal Army Corp because she was pregnant.  The matter came before an Industrial Tribunal on the 14th March 1994.  The Secretary of State for Defence conceded that the dismissal was unlawful sexual discrimination in that it contravened EC Council Directive 76/207, The Equal Treatment Directive.  The Tribunal's role was to assess the appropriate compensation.  

	In her originating Application, the Applicant had stated that she had no intention of leaving the forces in ordinary circumstances.  She stated that she had now made  
a new life, which had not been easy, and that she was not likely to attempt re-instatement, by which she meant re-engagement in the forces.  

	The Respondents' Notice of Appearance included only formal notifications and in no way set out a case in reply.  The Respondent did however, request further and better particulars of the Applicant's claim and how it was put, and how it was to be argued and quantified and by letter of the 2nd February 1994, that is over a month before the Hearing, full particulars were supplied.  
	In response, the Respondent disclosed a bundle of general pay documents, a pension algorithm and relevant regulations, but did not descend to considering the facts of the particular case.  The Tribunal heard oral evidence and also had placed before them the last annual assessment of the Applicant which was dated September of 1989 and included assessment and recommendation by more senior officers.  

	In their decision, the Tribunal referred to that assessment.  They also set out the course of events following the Applicant's discharge from the service and subsequent attempts to train herself and to obtain other employment.   She did in October 1992, that is after the date of originating Application, enquire about the possibility of re-enlistment, and was told that her prospects were poor.  

	There was also evidence before the Tribunal as to what was likely to have happened to Miss Cooke had she remained in the service and there was a reference to her remaining in Preston for twelve months and then a finding by the Tribunal that her posting would have been to Northern Ireland.  The Tribunal went on to find that she would have accepted that post but it would not have been possible for her to take her daughter with her to Northern Ireland.  The Tribunal found, as a fact, that Miss Cooke would have found the strain too much and would have;

		"resigned in order to be with her daughter."

	They refer to the question of child-minding costs while Miss Cooke remained in the service, to the date upon which they believe she would have returned to work and to ancillary matters, such as resettlement grant and pension rights.  The issue of pension rights was with the consent of the parties adjourned generally.  

	The Tribunal stated in paragraph 6.1:

		"We find that the cut off point for the Applicant's claim for pecuniary loss is 8th April 1991."

That, was the date at which she would have left the service, had she been permitted to remain in the service, having become pregnant and having borne a child.  There is apparently a dispute about the precise arithmetic but for present purposes it is not necessary to consider that.  

	The Tribunal then went on to find as follows:

	"6.3	In so far as the work that she has undertaken and the earnings that she has achieved we are satisfied that she has mitigated her loss to the best of her ability.

	 6.4	Re-enlistment:  We accept the evidence of Lieutenant Colonel Wilkinson that there were vacancies in the MP CORPS in May 1990.  We construe the comments of Captain Lindop in her last appraisal (R1/45) to mean that her prospects of re-engagement were quite good.  We also find that had she applied at about that time she would have had a 50% chance of being re-engaged in the MP CORPS, without loss of rank."

	The total award made by the Tribunal to the Applicant was £12,544.62.  The way in which that award is made up is set out in an Appendix to the award.   It included an award for injury to feelings.  It included loss of earnings up to the 8th April 1991 and awards of interest.  There was however, deducted from the loss of earnings to that date, an item headed:

		"Less 50% for the chance that she would have been re-engaged on 1/7/90."

Miss Cooke appealed against that award and a detailed Notice of Appeal was submitted to this Tribunal.

	Very recently, the Respondent put in a Respondents' Notice in relation to the Appeal and also by that document sought to bring a cross appeal.  The document as amended is dated the 31st October 1994.  On Friday last, an Application was made to me sitting alone that by consent the Appeal should be remitted to the Industrial Tribunal for re-hearing.  

	I declined to do that.  First, on the grounds that it was not appropriate for me sitting alone to do it, and second that I took the view the decision of a Industrial Tribunal was not to be remitted unless there was shown to be good reason for remitting it.  The parties were given the opportunity upon a three member Tribunal sitting this morning, to pursue their Application.  That has been done by Counsel Mr Brittain for Miss Cooke and Mr Vajda for the Secretary of State.

	Much of Mr Brittain's concern with the decision, as he expressed it to us in his submissions, related to the lack of evidence before the Tribunal, as he saw it.  Clearly he is seeking the opportunity to call further evidence if there is a re-hearing.  Mr Vajda opposes that approach and we agree with him.  In the ordinary way, it is not a reason for remitting a case that the Applicant should have a further opportunity to present evidence to the Industrial Tribunal,  particularly if that evidence was or should have been available to the Applicant at the time of the Hearing. 
	
	Mr Brittain did make the subsidiary point that documents were disclosed late, and that the Applicant did not know what the Respondent's case was to be.  Certainly there is merit in the second of those submissions.  The Secretary of State had not disclosed the basis upon which the Applicant's case as stated in IT1, and as particularised, was to be contested.  No Application for an adjournment was made, and no Application that directions should be given to the Respondent to set out, in advance of the Hearing, what his case was to be.  Mr Brittain submits rightly that at any rate where a failure to mitigate is alleged, the burden is upon the Respondent to establish that the Applicant has not taken reasonable steps to mitigate her loss.  

	We do, of course, also bear in mind that an adjournment can result in extra cost being incurred and it might not always be payable by the Respondent who has declined to give particulars.  In saying that, we are not giving an indication as to what course Industrial Tribunal ought to adopt in that event.  

	We are concerned about the lack of prior information which was available in this case, upon the information we have, and without Mr Vajda having made a full investigation into dates and times of disclosure.  We are concerned that the Tribunal appears to have proceeded without any sufficient advance disclosure and were therefore put in the position of having to consider what potentially are difficult issues of fact and to reach conclusions upon them without such disclosure.  

	However, that does not detract from the general view which we express which is that it is not a good ground of appeal to this Tribunal to claim that you should have a further opportunity to place evidence before the Industrial Tribunal.   The remedy should ordinarily be by seeking directions from the Industrial Tribunal or in certain cases it might be appropriate to seek a review of that Tribunal's decision.  

	However, the Grounds of Appeal do not end with that ground.  Mr Brittain submits that the Tribunal have erred in law in making the 50% deduction.  In substance Mr. Vajda agrees with the submission that there is an error of law.  Upon being pressed by us to be specific, he submits that the Tribunal have not, in their reasons, explored the issue of causation at all.  He acceded to the invitation from this Tribunal to submit that there was no sufficient reasoning in the Industrial Tribunal's decision.  In substance, the parties agree though of course the conclusion which each of them would seek the Industrial Tribunal to reach is a different conclusion.

	In our judgment this case must be remitted to the Industrial Tribunal.  We have recited two paragraphs of the Decision.  At 6.3 the Tribunal appear to have found that the Applicant took reasonable steps to mitigate her loss.  In paragraph 6.4 on the face of it they find that because her prospects of re-engagement were quite good, then there should be a 50% deduction from the compensation which she should receive.  She maintained as early as the submission of her IT1, to which we referred, that having made a new life, she was not likely to attempt re-instatement.  The Tribunal appear to have found that the efforts which she made after the birth of her child, to obtain re-training and to seek work was reasonable conduct on her part.   On the face of it, there is a contradiction between that finding and the finding that 50% of her compensation should be deducted because of the prospect that she might have re-elisted in the forces.  

	It can be noted that Mr Brittain, in his Notice of Appeal and his submissions does also seek to make the submission that upon the facts, any finding that Miss Cooke failed to take reasonable steps to mitigate a loss was a perverse finding.  

	Before leaving the case, we refer to the procedure followed upon these Application more generally.  Mr Brittain tells us that he is involved in many such cases.  We note that the present Application was made over 2 1/2 years ago, and it may be and indeed we hope it has become the practice to have fuller disclosure of material and defining of issues for the Industrial Tribunal in advance of the Hearing.  That is required not only in order to be fair to the Tribunal but in the interest of justice and a just result in each case.

	Mr Brittain tells us that even now, while Applicants are giving full particulars of how they put their case, no response is being received from the Secretary of State.  Mr Vajda has not come prepared to deal with that suggestions and we have to say there is no reason why he should have come prepared because we are considering a particular case.  It was because of our concern, upon hearing what had happened in this case, that we wished to enquire whether this was the general state of affairs or whether there had been improvement since this claim was made and since this claim was heard.

	It would not be appropriate for us to make any general statement in those circumstances.  The matter has been ventilated this morning and we merely express the hope that the task of Industrial Tribunals will be made easier and the opportunity which they have of reaching a just and correct result will be improved as they will be if the parties co-operate by way of disclosure of material to be relied on at the hearing and by way of defining of issues.

	This Appeal is allowed and the matter will be remitted to an Industrial Tribunal for a re-hearing.  We have considered whether there might be some narrower reference back, Neither party would be content with that for reasons we understand the reasons and the remission will be for a full re-hearing.