Secretary Of State For Defence v Jones [1993] UKEAT 594_93_0212

EAT
Secretary Of State For Defence v Jones
[1993] UKEAT 594_93_0212 · 1993-12-02
MR JUSTICE MUMMERY : This is an appeal by the Secretary of State for Defence against the unanimous decision of the Industrial Tribunal held at Southampton on 29/30 April 1993. The Tribunal decided that the Secretary of State had discriminated against the Applicant Mrs N E Jones on the ground of her sex and the Tribunal ordered the payment of £7,770 to Mrs Jones by way of compensation. Of that sum £2,000 was awarded for her hurt feelings.The basic facts which gave rise to the complaint of discrimination are these:Mrs Jones, who was then single and whose maiden name was Baguley, joined the Navy on 17 June 1991 as a trainee WRN. Her boyfriend, Mr Jones, joined the Navy at the same date. At the beginning of January 1992 Mrs Jones was sent on a radar course. She suspected early in that month that she was pregnant and went to see the Principal Medical Officer at HMS Dryad where she had been serving since September 1991. Surgeon Commander Bissett, the Principal Medical Officer, confirmed her pregnancy on 17 January.Without warning or consultation Mrs Jones was then taken off the radar course. Later in January she had discussions about the implications of her pregnancy with Mrs Roxburgh, who worked in unit personnel, and who regularly saw WRNs who became pregnant. We shall return to the evidence of Mrs Roxburgh. After those discussions took place Mrs Roxburgh sent a signal dated 29 January 1992 stating that it was intended to discharge Mrs Jones on 19 May. This was amended by a second signal, on 30 January, in which it was stated that the date of discharge was July 1992. A further signal was sent at a later date which stated that the final date of pay of Mrs Jones was to be 27 August 1992.Later in 1992 Mrs Jones' boyfriend was taken ill. He entered hospital. He was hospitalised for about 10 weeks. On 3 August Mrs Jones, who had been serving on shore in an office at HMS Dryad, went on 2 weeks terminal leave. She got married to Mr Jones. On 27 August she was finally discharged after being sent to HMS Nelson for leaving routine. On 10 September she gave birth to a son.That is the background to her complaint issued on 23 November 1992 that she had suffered sex discrimination in respect of her treatment and discharge from the Navy. In her complaint she said that she had been discriminated against on grounds of sex because the regulations did not apparently allow for any transfer from a sea-going to shore-based job and there was no question of the Royal Navy asking her husband, Seaman Jones, to give up his sea going career and act as their son's guardian.She also took issue with the way that she was treated from the date of confirmation of her pregnancy on 17 January 1992 until she was discharged. She complained particularly of being taken off the radar course without any consultation and with the refusal of permission, despite requests, to wear civilian clothes instead of a cumbersome and ill-fitting uniform.The decision of the Tribunal in favour of Mrs Jones was appealed by the Secretary of State by a Notice of Appeal dated 13 July 1993. It is unnecessary to set out all the grounds on which it was alleged in the Notice of the Appeal the Industrial Tribunal had erred in law. Mr Hoskins, who has presented a difficult appeal with great skill, confined his grounds to two main points. The first point was that the Industrial Tribunal had erred in law in finding that Mrs Jones was discharged from service in the Royal Navy against her will when there was no evidence or finding of fact sufficient to support that conclusion. We shall refer to this as "the discharge point". The Tribunal reviewed the evidence and came to the conclusion that Mrs Jones was discharged against her will.The second point, which may be called "the damages point", is that in awarding £2,000 compensation for hurt feelings, the Industrial Tribunal was influenced by an irrelevant factor in assessing such compensation. The irrelevant factor is said to be the fact that it was a Government Department against which a claim of sex discrimination had been established in what was described by the Tribunal as a blatant and serious case. The Secretary of State's argument is that, on the findings of fact in the case, it was not a blatant and serious case, and the fact that the Respondent to the complaint was a Government Department, was irrelevant to the assessment of damages.Dealing first with the discharge point, we have considered in detail with both Mr Hoskins as Counsel for the Secretary of State and Mr Boyd, Counsel for Mrs Jones, the very Full Reasons given by the Tribunal for their decision and the notes which the Chairman of the Industrial Tribunal made of the evidence in Chief and cross-examination of Mrs Jones. We find that there was evidence before the Tribunal sufficient to support a conclusion that Mrs Jones was discharged from the Navy against her will and there was a clear finding to that effect. It is unnecessary to go into all the details since, in our judgment, the relevant events are confined to January 1991.We have already mentioned the radar course from which Mrs Jones was removed on confirmation of her pregnancy. The case of the Secretary of State before the Industrial Tribunal was that Mrs Jones agreed to be discharged from the service by 29 or 30 January following discussions with Mrs Roxburgh. Mr Hoskins made it clear that the Secretary of State did not rely on any facts or events which occurred after the end of January for the submission that there was an agreement by Mrs Jones to be discharged. His submission was that the evidence certainly showed that Mrs Jones was reluctant to leave the Navy, but that there was no evidence to support a finding that she had been discharged against her will.Before we turn to Mrs Roxburgh's evidence we should also mention one further point made by Mr Hoskins which has clarified the issue before us: he accepts on behalf of the Secretary of State that, if there was evidence to support the Tribunal's conclusion that Mrs Jones was discharged against her will, she having been found to be pregnant, then that alone constituted discrimination on grounds of sex. In that case it would not be necessary to look at what happened subsequently to see whether or not the treatment of Mrs Jones constituted discrimination. That position is accepted in the context of a case brought against the Secretary of State both under the provisions of the Sex Discrimination Act 1975 and under the provisions of the Equal Treatment Directive 76/207, which on the authorities are directly enforceable by a person in the position of Mrs Jones against a Government Department or Public Authority.Let us then look at the evidence before the Tribunal in relation to the issue whether Mrs Jones agreed to be discharged from the Navy or whether she was discharged against her will. On the one hand, there was the clear evidence of Mrs Jones. It is clear from the Notes of Evidence and from the reasons for the decision that, as far as she was concerned, she never agreed to be discharged. She did not sign any documents. Her evidence was that she went along with what she was being told by Mrs Roxburgh ie if she wished to stay in the service, she would be liable for sea going service and some permanent arrangements would have to be made for her baby.On the other hand, what evidence was there from Mrs Roxburgh that Mrs Jones had agreed to a discharge. The evidence from Mrs Roxburgh is dealt with in paragraph 27 onwards of the decision. Mrs Roxburgh gave evidence:"that her normal routine was to ask the "girls" if they wanted a termination, whether they wanted the baby and to stay in service, or whether they wanted to be discharged. She also said that if they were unsure she would ask them to go and think about their options and to talk about it with the boyfriend or parents. When they had reached a decision, she would then start the administrative process.She gave evidence to the Tribunal that, prior to December 1991, if the girl had not been in service for two years (and that was the case of Mrs Jones) she would have been automatically discharged upon becoming pregnant. However, after December 1991 (the events that we are concerned with occurred after that date), if she wanted to stay then she would get the "girl" to sign a form either 19 or 20. She told the Tribunal that she introduced these forms early in 1992 and believed that the forms 19 and 20 were in use when she would have seen the applicant.Mrs Roxburgh could not recall the exact conversation which she had with Mrs Jones. She could not remember her. She could only tell the Tribunal what the normal procedure was. Because of the destruction of ratings' documents in circumstances to which we shall return, the Navy was unable to produce any documents relating to Mrs Jones' proposed discharge. Mrs Roxburgh was not able to tell the Tribunal whether Mrs Jones had signed any forms and, if so, what forms they were. All she was able to produce in the way of documentation were the three signals mentioned.Paragraph 30 of the reasons for the decision are particularly important. The Tribunal said:
"Although Mrs Roxburgh could not remember the applicant nor could she state why the signals were sent when they were, she could only state that they [and the important signals were those of 29 and 30 January] would not have been sent had there not been some form of consultation with the applicant. She could produce no other documents relating to the proposed discharge of the applicant."
It is necessary to look further into the decision because, as is common ground, a decision must be looked at as a whole and not simply by reference to particular paragraphs or sentences taken out of context.Mr Hoskins reminded us of what is said in paragraph 57 of the reasons for decision. The Tribunal said:
"The applicant denies that she signed anything, and Mrs Roxburgh cannot remember whether she had actually signed anything or not. We are more inclined to believe that no documents were signed by the applicant, possibly because the documents had not been fully introduced at the time Mrs Roxburgh interviewed the applicant. Mrs Roxburgh told us that the signal (document 16), would not have been sent [and that is referring to the signal of 29 January] if it had not been initiated by the applicant.
We do not have before us the Notes of Evidence made by the Chairman in relation to Mrs Roxburgh's oral testimony. They have not been requested. Mr Hoskins' submission was that the reference in paragraph 57 to the fact "that the signal would not have been sent if it had not been initiated by the applicant" constituted evidence of an agreement made by Mrs Jones to be discharged from the Navy. The Tribunal's finding that there had been a discharge against Mrs Jones' will could not therefore be supported.We are unable to accept that submission. Our conclusion on the discharge point is that the Industrial Tribunal came to a decision which was justified by the evidence. On the one hand, it had the clear evidence of Mrs Jones that she had never agreed to be discharged. Against that there is no contemporary documentary evidence, other than the three signals. On the face of the three signals which we have been shown they are consistent both with discharge of Mrs Jones with her agreement and discharge of Mrs Jones against her will. All that Mrs Roxburgh was able to add to that was that those signals would not have been sent had there not been some form of consultation with Mrs Jones. That is far removed from evidence that Mrs Jones consented to be discharged.For those reasons we find against the Secretary of State on the discharge point. By reason of the concession which Mr Hoskins has made it follows that a case of sex discrimination was rightly found by the Industrial Tribunal.In view of that finding it is not necessary to go into other detailed points raised in the Grounds of Appeal and in the Skeleton Arguments regarding the evidence of Mrs Jones' belief that there was some requirement of guardianship or special arrangements in relation to a child, if she was to remain liable for sea going service. It is not necessary to consider various points made in the reasons for decision regarding the failure to question Mr Jones as the child's father or in relation to Mr Jones' own illness in 1992.The only point left in the appeal was the damages. The point is very short. Compensation of £2,000 was awarded for hurt feelings. The main objection made by Mr Hoskins was that it appears from paragraph 74 of the decision that the Tribunal was influenced in making that award by the fact that the Secretary of State was a Respondent. The Tribunal said:
"We consider that this is a blatant and serious case involving a Government Department and that therefore an award at the top end of the bracket is appropriate. We feel that the compensation should be £2,000 in respect of hurt feelings. We do not make any award for aggravated damages. Also we do not make any award of exemplary damages since the Employment Appeal Tribunal considered in Deane v London Borough of Ealing (20.1.93) such an award is not available in cases of Sex discrimination."
We agree with Mr Hoskins that the fact that a Respondent in a Sex Discrimination case is a Government Department, is not a relevant consideration in a decision to award damages for hurt feelings or in the assessment of such damages. The damages are compensatory, not punitive. All the Tribunal should look at is what, in all the circumstances, is the harm suffered by the Applicant. The identity of the Respondent who has inflicted that harm is irrelevant. It would be relevant in an award of exemplary damages, where the punitive nature of the jurisdiction requires the Court to look at such circumstances as the position of the wrong-doer. Our decision in favour of the Secretary of State on this point does not, however, lead to the conclusion that the £2,000 in respect of hurt feelings should be reduced, or that the question of the amount of compensation should be remitted to the Industrial Tribunal. Mr Hoskins accepted that this amount was within the permissible range of awards for hurt feelings. He was not able to advance a submission that, if one left out consideration of a Government Department and treated this as a case between ordinary individuals, as it should be, the amount of £2,000 was excessive.We therefore dismiss the appeal on the damages point, with those observations for future guidance about the irrelevance of the identity of a Respondent to the assessment of compensatory damages.There were two further points. The first is that, in our view, the award of £2,000 was fully justified in the light of the treatment which Mrs Jones received when she was found to be pregnant. It is unnecessary to go into the details. We will, however, go out of our way to say that we agree with these comments of the Industrial Tribunal in paragraph 72 of their decision. They referred to evidence given by Miss Pfeiffer, who is a senior civil servant with the Ministry of Defence, that the Navy tried to take account of the employee's preferences as good employers. The Tribunal added (and we agree):
"In this case, if there had been someone specially trained to assist in the situation arising as a result of pregnancy in a sympathetic and helpful manner, many of the problems encountered by the applicant could have been avoided."
We would add that following what we have been told is a change in the Navy regulations in 1990, we hope cases like this will not be appearing in the Industrial Tribunals or in this Tribunal.The second point concerns a difficulty the Navy made for itself in the conduct of this case. We agree with the comments of the Industrial Tribunal in paragraphs 39, 40 and 41 of the decision. The Industrial Tribunal was told, and we have been told, that it was the practice of the Navy until about three months ago, to destroy ratings' personnel files within one month after leaving the service. The Industrial Tribunal commented:"Miss Pfeiffer ...with masterly understatement, told us that she found this practice "unhelpful".The Tribunal added at paragraphs 40 and 41:
"Bearing in mind the three month time limit for bringing a claim in this Tribunal, let alone other time limits which may be applicable elsewhere, such a policy is short sighted in the extreme.
The Tribunal has had to do the best it can without the relevant documents".We welcome the change of practice and hope that, if there are any cases of this kind before the Industrial Tribunal in the future the Navy will be in a position to produce to the Tribunal relevant documents in personnel files and will not have to say that they are unavailable because they have been destroyed.For all those reasons this appeal is dismissed.We have heard argument about the costs of this appeal. We are not concerned with the costs before the Industrial Tribunal at which Mrs Jones represented herself. On this appeal she has had solicitors and Counsel on legal aid. The application is that the Secretary of State should pay the costs under regulation 27(1) of the Employment Appeal Tribunal Rules which provides:
"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."
and sub-rule (2) provides:
"Where an order is made under paragraph (1) of this rule, the Appeal Tribunal may assess the sum to be paid, or may direct that it be assessed by the taxing officer, from whose decision an appeal shall lie to a judge."
Mr Boyd, on behalf of Mrs Jones, submitted that there should be an order for costs in this case because this was an unnecessary appeal. Not only has the Secretary of State lost the appeal but he has done so in a case where the Industrial Tribunal found, and we upheld, the holding that it was a blatant and serious case of discrimination. He went on to submit that the appeal never stood any serious chance of success, since it depended on a claim that there was no evidence to support the finding that Mrs Jones was discharged against her own will. It was apparent from looking at the decision, as well as at the notes of the Chairman's evidence, that there was difficulty in succeeding on this point in the face of the evidence given by Mrs Roxburgh.The argument on the other side by Mr Hoskins is that the fact that Mrs Jones is legally aided, with the implications that that may have, is irrelevant. That is a correct submission. He argued that the fact that an appeal was unsuccessful did not mean that it was improper or unnecessary to pursue it. He pointed out that there were various arguments advanced on the appeal which were reasonably arguable and, in particular, pointed out correctly that the Tribunal had accepted one point he made against the Industrial Tribunal's decision, namely the irrelevance of the fact that the Respondent was a government department.After we heard argument we retired for a short while to enable Counsel for the Secretary of State to act on a suggestion we made that this is a case in which the Secretary of State might think it appropriate to make an offer of contribution to Mrs Jones' costs. The suggestion of an offer was prompted by the information given to us by Mr Hoskins, on behalf of the Secretary of State, that the point on the irrelevance of a government department in the assessment of compensation for hurt feelings was one which needed to be clarified in view of other claims.After we returned to the Court we were informed that an open offer had been made of £1,000 towards the costs of Mrs Jones, but that had been rejected.Our conclusion on this matter is that it would be appropriate in this case to make a limited order for costs against the Secretary of State. We shall make such an order in the sum which has been offered, namely £1,000. We have power to assess the sum to be paid provided we are satisfied that this appeal was unnecessary.We conclude that this appeal was unnecessary to this extent. There was an arguable point on the question of findings of fact relating to the discharge of Mrs Jones and the findings of the Industrial Tribunal in relation to the evidence given by Mrs Roxburgh and Mrs Jones. It is clear that Mrs Jones was never seeking to argue, in support of the claim for £2,000 compensation for hurt feelings that this was justifiable by reference to the fact that the Respondent to the claim was a government department. We refer to the skeleton argument which was put in support of Mrs Jones' case. On pages 9 and 10 it is submitted that the award reflected that it was a blatant and serious case and not one that involved a government department. It is correct on that basis. It was, in our view, unnecessary in those circumstances for this appeal to be persisted in in order to deal with that point. That is only part of the case. We therefore conclude that it is only open to us to order a part of the costs. For those reasons we shall order the sum of £1,000 costs.We rescind the short judgment on the question of costs in this case, as it became apparent from subsequent argument that that decision was given on the basis of a factual misunderstanding on the part of the Tribunal as to the circumstances in which those advising and representing Mrs Jones were taking a position on what we called the "damages" point. I will now deliver a new judgment in its place.We heard argument following the dismissal of the appeal as to whether an order for costs should be made against the Secretary of State. The normal practice in this Tribunal is that costs are not awarded against the unsuccessful party. There is, however, a limited jurisdiction to award costs against an unsuccessful party. That is contained in Rule 27 of the Employment Appeal Tribunal Rules 1980. That provides:
"(1) Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings.
(2) Where an order is made under paragraph (1) of this rule, the Appeal Tribunal may assess the sum to be paid, or may direct that it be assessed by the taxing officer, from whose decision an appeal shall lie to a judge."The arguments presented on the question of costs were broadly these. It was argued on behalf of Mrs Jones that the appeal had been unsuccessful and never stood any real chance of success. The main ground of appeal was that there was no evidence to support the finding of the Tribunal that Mrs Jones had been discharged against her will. That point mainly turned on a consideration of the evidence given to the Tribunal by Mrs Jones and the evidence by Mrs Roxburgh. For the reasons we have given the challenge to that finding fails. It was observed that the Industrial Tribunal found that this was a blatant and serious case of discrimination on the grounds of sex. That ruling has been upheld on this appeal. It was, therefore submitted that this was an unnecessary appeal and costs should be ordered against the Secretary of State.On behalf of the Secretary of State it was argued that it did not follow that because the appeal was unsuccessful that the Court should exercise its powers under Rule 27(1). There was, it was submitted, an arguable case on the discharge point and there was also a further point arising on the basis on which the Industrial Tribunal ordered compensation for hurt feelings.After we heard argument it was suggested by the Tribunal that this might be a case in which the Secretary of State would consider offering to make a contribution to the costs of Mrs Jones. We retired while instructions were taken and, after we returned, we were informed that an open offer had been made of a contribution of £1,000 and that that had been rejected by those representing Mrs Jones.We then gave a judgment on the matter which we have had to rescind, because there was a misunderstanding about the factual position. The facts as we understood them were that Mrs Jones, as indicated in paragraphs 9 and 10 of the Skeleton Argument, was not seeking to support the award of £2,000 on the grounds that it was relevant to take into account that the Respondent was "a Government Department". It was said in the Skeleton Argument:
"...it is submitted that the award reflected the fact that it was "a blatant and serious case" and not that it involved a Government Department, and is correct on that basis."
We were then informed by Mr Hoskins that that was not a correct assumption to make. The Skeleton Argument had only been supplied to his instructing solicitors late yesterday. He had only seen it this morning. Both Counsel obtained from their solicitors' files some recent correspondence. There are two letters, one dated 27 September 1993 and another dated 3 November 1993. It is made clear in the later letter that Mrs Jones was submitting, on the basis that European law applies, that:
"...it is a relevant factor for the tribunal to have borne in mind that the employer was a Government Department."
We therefore heard further argument. The position, as it seems to us, is this. The appeal against compensation for hurt feelings failed. The compensation was in the sum of £2,000. It was accepted on behalf of the Secretary of State that, on the facts of this appeal, it was not possible to challenge the sum of £2,000 as being outside the permissible range of awards under this head of compensation. In those circumstances there never was a real challenge to the size of the award of compensation in the sum of £2,000. It seems to us that the real purpose behind this aspect of the appeal was an understandable wish on the part of the Secretary of State to obtain a ruling of this Tribunal that it was not relevant for Industrial Tribunals, in assessing compensation under this head, to take account of the fact that a Respondent to a sex discrimination case is a Government Department. We have so ruled.It therefore seems that the Secretary of State sought on this appeal to obtain a ruling which would be of more use to him on other appeals than on this appeal. He has therefore, quite legitimately, used this appeal as a means for obtaining a ruling of general application. In those circumstances it would be right to order the sum of £1,000, which has already been subject of an open offer to be paid by the Secretary of State, as a contribution to the costs of Mrs Jones. We can do that under the provisions of Rule 27(1) and (2) because, it appears to us that the appeal in relation to the £2,000 was unnecessary for the purposes of disposing of this appeal. The only reason it was taken was to secure a ruling of general application. It was not necessary to bring an appeal on that point in this case in which there was no challenge to the sum of £2,000.For those reasons the Secretary of State will be ordered to pay the sum of £1,000 towards the costs of Mrs Jones. We decline to make an order that all the costs of Mrs Jones be paid by the Secretary of State.