Appeal No. EAT/401/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16th June 1995

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MRS T MARSLAND

	MR T C THOMAS CBE

MRS L DAWSON	APPELLANT

THE MINISTRY OF DEFENCE	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR SIMON GORDON
(of Counsel)
Messrs Lees and Partners
44/45 Hamilton Square
Birkenhead
Merseyside
L41 5AR

For the Respondents	MR RICHARD MCMANUS
	(of Counsel)
	MR ANDREW FRASER-	URQUHART
	(of Counsel)
The Treasury Solicitor
Room 449
Lacon House
Theobalds Road
London 
WC1X 8RY

	MR JUSTICE TUCKER:   We are sorry to find that a responsible respondents such as these, have been, as we have said, slack in the preparation of these documents and we criticise them for that. If there were any question of costs we would hear any application. It is highly desirable that pleadings in these matters be furnished as soon as possible and that the rules be adhered to. On the other hand where as here, an answer contains a simple assertion that the respondents rely upon the grounds advanced by the Industrial Tribunal for their decision, it does not seem to us that the appellant can be taken by surprise. No new point has arisen. Nevertheless, it is straightforward point which ought to have been dealt with months if not a year ago, and we entirely agree with Mr Gorton's comments about that. But because this case was a pre-Cannock case we think we might be assisted by submissions from Counsel for the Ministry of Defence on the applicability or not of the Cannock guidelines to this situation, and accordingly we propose to allow the respondent to appear and to address us by Counsel. But having said that, Mr Gorton if your client feels that the presentation of her appeal would be in any way disadvantaged by what has taken place, we will consider granting you an adjournment and if you want an adjournment, the Ministry of Defence will have to pay for it. 

	COURT RISES

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	MR JUSTICE TUCKER:  This is an appeal by an ex-servicewoman, Mrs Linda Dawson from a decision of the Industrial Tribunal held at Liverpool on 24th and 25th January and 11th February 1994 whereby compensation was awarded to the appellant as a result of her unlawful dismissal from the Women's Royal Air Force on the grounds of her pregnancy. 

	This case was held some months before the decision of this Appeal Tribunal in the Ministry of Defence v Cannock and Others [1994] ICR 918, so the Industrial Tribunal did not have to consider the guidelines there laid down and no issue about that has been raised before us.

	The appellant joined the Women's Royal Air Force as a typist on a nine year engagement on 11th January 1982. She was then rising nineteen years of age, we assume that she is now therefore in her mid-thirties. In 1983 she was posted to Uxbridge and worked in London. On 17th August 1984 she married an airman. He was soon posted to Germany but her application for co-location was rejected. However, in January 1986 she extended the length of her service to twelve years. In August 1986 her husband returned from Germany and joined her at Uxbridge. The Tribunal say that they were satisfied that by that time the appellant determination to pursue her career was waning. She became pregnant in September 1986 and was discharged from the forces on 20th December of that year by reason of her pregnancy.

	We quote the finding of the Tribunal as to what happened next. At paragraph 5.4 of their decision they say this:

		"5.4		In about March 1987 Mr Dawson was posted to RAF Valley on Anglesey. The applicant is a native of Caernavon. ..."

	There is no quarrel with that finding as such, but Mr Gorton on behalf of the appellant criticises the Tribunal for not going on to consider or make a finding as to why that posting occurred. In view of the decision which the Tribunal later reached such a finding is, he submits, crucial. 

	At paragraph 7.1 on their decision the Tribunal concluded:

		"... that by September 1986 her desire to be with her husband/family was at least as strong as her desire to pursue her own career. [And they then said this] We are satisfied that had she still be in the WRAF when her husband was posted to RAF Valley in March 1987, she would have been anxious to join him as soon as possible thereafter. ... She would undoubtedly have applied for co-location to Anglesey. We find that had that not been possible there would have come a time when her desire to be a united family would have been greater that her desire to pursue her career. We find that time would have been reached by December 1987 i.e. no later than 9 months after her husband's posting to Anglesey."

And in paragraph 7.2 the Tribunal say this:

		"The crucial issue for our consideration is therefore, on the balance of probabilities, would she have been co-located before December 1987. We have considered the evidence put before us with considerable care. We heard no direct evidence as to the chances of the applicant being co-located with her husband at RAF Valley in the period March to December 1987. [But they refer to what she told them in general terms.]"

	Therefore the question which the Tribunal posed for itself was whether the appellant would have been co-located before December 1987 because on their view had that not occurred she would have left the services voluntarily in order to be with her husband. They answer that question at paragraph 7.3, and they say:

		"On balance we have come to the conclusion that the applicant would not have been co-located with her husband in Anglesey before December 1987. It follows therefore that her pecuniary loss terminates on 6 December, 1987."

	But all that begs the question as to why Mr Dawson was posted to Anglesey. If it was a compulsory posting ordered by the Royal Air Force and which would have occurred even if the appellant had continued in the services then the Tribunal's reasoning holds good. But if on the other hand it was a posting for which he volunteered, as a result of the appellant's discharge from the services, and because of her desire to return to her roots in North Wales, then the reasoning falls to the ground. In those circumstances if she had not been discharged his posting to Anglesey would not have occurred, they would have continued to be posted together at Uxbridge and the question of a refusal of co-location would not have arisen. Neither on that hypothesis would there have been any conflict between the appellants family and her career. 

	Mr Gorton who also represented the appellant before the Industrial Tribunal told us that the question of co-location did not pose itself as an issue. Had it done so he would have called Mr Dawson, who was present, to give evidence. As it was he not called.

	It seems to us, that at the heart of the matter is as we have said, the reason for the posting to Anglesey. It is a question that was capable of resolution by evidence from the appellant and her husband and by reference to Royal Air Force records. Unfortunately the Tribunal did not have such evidence before it, nor did it address itself to this question. The appellants submits that a fundamental misunderstanding occurred, and that the Tribunal erred in law or came to a perverse decision. The respondents submit that Mr Gorton had proper opportunity to deal with the matter at the hearing and should have done so, and that the appellant cannot now complain that she was treated unfairly or that there was any breach of natural justice. It may be that Counsel did not sufficiently crystallise the issue for determination by the Tribunal; maybe the Tribunal misunderstood what that issue was. We do not seek to apportion blame, but it does seem to us that there was an unfortunate misunderstanding, that the proper question was not addressed, and that it is possible that an injustice occurred. The matter is capable of being resolved one way or another, and we think that it would be unsatisfactory to leave it unresolved.

	The course we propose to take is to allow the appeal and to remit the matter to the Industrial Tribunal for reconsideration in the light of our observations. It would be desirable if possible, that the re-hearing should be before the same Tribunal or at least before the same Chairman as before.

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	MR JUSTICE TUCKER:   In remitting this case to the Industrial Tribunal for re-hearing, we invite the Chairman to consider the matter in the light of the guidelines in the case of Ministry of Defence v Cannock to which we have already referred. It will be for the Chairman and his colleagues to decide in the light of that guidance how best they approach the question of the appellant's return to service, the length of that service, and the prospects of any promotion. The Chairman might find it helpful also to have before him the general observations which we are shortly to give in a number of appeals which have been before us this week.

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	MR JUSTICE TUCKER:   We mark our disapproval of the delay, indeed failure, to file an answer by ordering that the respondents of this appeal bear the costs occasioned by their failure. We imagine that those costs will principally be reflected in the extra correspondence which the appellant's solicitors have had to write. But we hope that the parties will be able to reach a sensible agreement about that.