Stuart v Ministry Of Defence [1995] UKEAT 68_95_0711

EAT

Stuart v Ministry Of Defence

[1995] UKEAT 68_95_0711 · 1995-11-07

MR JUSTICE MAURICE KAY : Mrs Stuart joined the Women's Royal Air Force in April 1964 on a 22 year engagement. She was then aged 17. She married her husband in October 1969. He was also in the Royal Air Force. She was discharged by reason of her first pregnancy on 28th October 1980. That child was born on 14th January 1981 and Mrs Stuart gave birth to two further children on 20th June 1982 (sadly, a stillborn child) and 26th April 1984 respectively. Mr Stuart completed his 22 years engagement in 1984 or 1985. The Industrial Tribunal at Bristol came to the conclusion that if there had been provision for maternity leave in 1981 Mrs Stuart would not have returned to the WRAF after the birth of her first child but "would have preferred to complete her family rather than her service". It estimated the chance of her returning, if she had been able to do so, at 20%. She had not pursued an appeal against this part of the Decision. Although her Notice of Appeal purported to raise a number of appeal points, Mr Kibling has quite rightly abandoned them all save for one relating to mitigation of loss. The relevant parts of the Decision on this issue are in the following terms:

"9. ... After the [ first ] birth she recalls trying to obtain employment in her trade as a vehicle painter/sprayer but would not get such a position. She was successful in obtaining part-time work at Calne Sports Centre as a part-time swimming instructor and part-time lifeguard. The applicant, because of her husband's position financially, did not need to work full-time and preferred to work part-time in the job which she liked, rather than to seek full-time employment ..."

"13. As far as mitigation is concerned, our conclusion is that it would have been possible in the early 1980's for the applicant to have obtained full-time employment had she wished to do so, and that the pay she could have expected to receive would have been between £3500 and £4000 a year. We are satisfied that she did not look for full-time employment because first her husband's financial position was sound that she did not have to do so and secondly she was particularly keen to continue with her swimming instruction and that was only available on a limited basis. That was a choice which the applicant was quite entitled to make and it cannot be criticised in any way, but it did mean that she voluntarily took herself out of full-time employment - which is what she would have had to do had she returned to the services six months after her daughter's birth. On hearing the salary figure, Counsel for both sides agreed that they should take the figure at £3750."

Mr Kibling submits that the Industrial Tribunal erred in law in determining that Mrs Stuart had failed to mitigate her loss and that she could have secured full-time employment at £3500 - £4000 per year in the absence of any evidence as to the availability of full-time work in the Calne area, the nature of such work and its likely duration within the relevant period. Essentially, his submission is that the Industrial Tribunal unjustifiably filled gaps in the evidence - the other side of the coin from these appeals in which the Ministry of Defence as appellant has contended that Industrial Tribunals have wrongly refused to fill evidential gaps. Mr Kibling relies on Gardiner-Hill v Roland Berger Technics Ltd , the relevant passage from which we have set out earlier in the judgment.

In this appeal we have had the advantage of seeing the Chairman's Notes of Evidence. They clearly support findings that Mrs Stuart made little or no attempt to obtain work as a civilian paint-sprayer; that she did not register at the Job Centre; that she chose to pursue swimming instruction which, because of her lack of formal qualifications was only available on a part-time basis; that the family's financial circumstances were such as to enable her to work on a part-time basis only; and that she had only applied for a full-time job in 1994. The assessment of her full-time earning capacity in the early 1980's in the region of £3750 cannot be attacked - not only was it agreed by Counsel without apparent objection; it was also very close to Mrs Stuart's terminal salary in the WRAF. The remaining question is whether the absence of specific evidence about the availability and potential duration of jobs can sustain an appeal.

We note that there is nothing to indicate that Counsel objected when the Tribunal revealed its provisional thoughts about mitigation - quite the contrary. It resulted in an agreement as to an annual salary figure and, soon afterwards, an agreed quantification of the whole claim based on the Tribunal's rulings. (We should add that although both parties were represented by experienced Counsel at the Industrial Tribunal, they were in both cases different from Counsel appearing before us). Moreover, although we are mindful of the burden of proof in relation to an alleged failure to mitigate resting on the Ministry and of the importance of the approach set out in Gardiner-Hill (Supra) , we do not consider that this Industrial Tribunal overstepped the mark. Mrs Stuart preferred not to seek full-time employment. On the basis that she exercised a preference (as the Tribunal found), there must have been, at least by implication, a full-time alternative and, to the extent that there was, the deemed salary of £3750 was not inherently perverse (being comparable with her terminal WRAF pay) and came to be agreed by Counsel. In our judgment there was a basis in the evidence and in the way in which the case was conducted by Counsel to justify the findings of the Industrial Tribunal. Notwithstanding the submissions so ably advanced by Mr Kibling, Mrs Stuart's appeal fails and is dismissed. We should add that we are satisfied that this was not one of those situations postulated in Halford v Sharples

[1992] IRLR 147

, 165-177, where the Industrial Tribunal has resorted to it experience as an industrial jury without affording the parties an opportunity to make representations.