"Such cases have been considered by the Appeal Tribunal on many occasions, notably in MOD v Cannock & 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."
"Whenever an appeal is based upon 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 conclusions 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 a decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is "irrational", "offends reason", "certainly wrong" or "is very clearly wrong", or "must be wrong" or "is plainly wrong" or "is not a permissable option" or "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 grounds of perversity. The reason why it is a heavy burden to discharge is that it has 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 different Tribunals, or 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 toothcomb". 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 advisors to identify an error of law that may have occurred in reaching the conclusion."
"... here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the Law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100%: sometimes virtually nil. But often it is somewhere in between."
"Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticise the steps which have been taken to meet it, but such criticism does not come well for those who have themselves created the emergency. The Law is satisfied if the party placed in a difficult situation by reason of a breach of a duty owed to him has acted reasonably in the adoption of remedial measures and he will not be held disentitled to recover the costs of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken."
"In order to show a failure to mitigate, it has to be shown that a particular step had been taken, Mr Gardener-Hill would, after a particular time, on balance of probabilities have gained employment; from then onward the loss flowing from the unfair dismissal would have been extinguished or reduced by his income from that other source. In fixing the amount to be deducted for failing to mitigate, it is necessary for the tribunal to identify what steps should have been taken; the date on which that step would have produced an alternative income and, thereafter, to reduce the amount of compensation by the amount of the alternative income which would have been earned. Since that is the principle of mitigation, a reduction of a percentage of a total sum representing compensation for the whole period is inappropriate."
"In our opinion, the point at which discount should be applied is before the deduction is made for failure to mitigate which should be made in full and without a discount. We agree with the (Ministry's) submissions that mitigation is not a question of loss of a chance, but one of fact. The figure is definite where there has been mitigation in fact and can certainly be calculated where there has not been but should have been mitigation."
"We take the view that the position here is analogous to the situation which the Employment Appeal Tribunal had to consider in Derwent Coachworks v Kirby[1994] IRLR 639 ."
"We have no doubt that this is the position so far as the deduction for failure to mitigate is concerned. We leave open the question of whether the same applies to deductions of child care costs."
"In our opinion our approach to the problem should be based upon logic and principle.
"Where an employee had by his conduct contributed to his own dismissal, payments made by the employer should be taken into credit after the nett amount had been calculated and proportionately reduced to take account of the employees contribution to his dismissal and as not as part of the nett calculations."
"They (i.e. the Industrial Tribunal) correctly began by assessing the basic award and reduced that by half in view of the degree of contributory conduct. Then again, correctly, they proceeded to assess the compensatory award to take into account appropriate payments received, and to apply the 50% contribution. They arrived at a figure of 32 weeks nett pay. From that they deducted the appropriate figures for actual and estimated unemployment and supplementary benefits. So far so good. But the employers paid no less than£554.68 direct to the employee expressed to be in lieu of notice. Understandably enough the Industrial Tribunal gave credit and deducted this from the full entitlement. They added up the receipts and halved them before arriving at the nett amount due. The short point taken here is that by doing it in this way they deprived the employer of half of his payment. Obviously this must be wrong. It means that the employer is being penalised when the employee by his conduct has contributed to the dismissal and that an employer who has to compensate an employee who is free from blame gets full credit for any payments he may have made. At one time in our deliberations we were minded to conclude that as a point of principle there might be a distinction between a payment made entirely ex-gratia compared with a payment made in recognition of a contractual entitlement. But this would not deal with the anomalous position that an employer is worse off where the employee has been in part to blame for his dismissal. In order to avoid unnecessary investigation as to the precise category to which the employers' payments should be put it would be simpler and fairer in our view if the employers payment is taken into credit after the nett amount has been calculated and proportionately reduced and not as part of the nett calculations."
"There is no need for an "all of nothing" decision. If the Industrial Tribunal thinks that there is doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment."
"It must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with applicable national rules."
"It would not be a fair comparison to make to equate the compensation in these cases with amounts awarded for personal injuries nor would the total award to a victim of an accident."
"... their compensation for loss of earnings is not likely to be different than the thousands of cases of unfair dismissal with which the Industrial Tribunals are having to deal with each year, albeit that there is no cap on the award."
"We suggest that tribunals do not simply make calculations on various heads, and then add them up and award the total sum. A sense of due proportion involves looking at the individual components of any award and then looking at the total to make sure that the total award seems a sensible and just reflection of the chances which have been assessed."
"The correct way to calculate the award is to determine what pay Mrs Hunt would have earned had she been at work from the date of discharge to the expiry of the sixteen year term with the appropriate increases for the promotions and then to make appropriate deductions for child care costs and then to deduct what she has, in fact, earned after deductions of any child minding costs. Pension loss should be added."
"There was no chance at all that she would have left the Army after the birth of either child had maternity leave been available to her and had she been free to continue her successful military career."
"... had as a role model a mother who worked outside the home constantly, we accept she regarded that as the norm."
"A natural career woman who had no reserve about employing a nanny to look after her children."
"On the Ministry of Defence evidence, Mrs Hunt could not have reached the rank of substantive Major before the age of 32, that is before16th October 1989 . In our judgment, on the evidence of her performance and assessments, she would have reached the rank of acting major by16 October 1985 and a substantive rank by16 October 1989 . We find that she would have had no further promotion because she would have completed 16 years service before she attained the age of 37 when she would have been eligible for promotion to Lt. Colonel."
"We have also asked ourselves what is the chance that she would have extended her short-service commission to eight years and then applied and been granted a regular commission or a special regular commission up to 1988 ... We have assessed Mrs Hunt's chances of promotion. "
"The approach in the employment field is where an employer by his unlawful discrimination has put an employee in the position of having to seek new employment in a difficult market or in the circumstances where he or she is disadvantaged in the eyes of that market (whether by reason of having a baby to care for or because of age or for some other problem) the steps which the employee takes to mitigate his or her loss are not to be weighed too precisely at the instance of the employer."
"We think the Industrial Tribunal were wrong in law to refer to the disadvantages of having a child to care for."
"Mrs Hunt did not apply for the Civil Service or a civilian job with the Ministry of Defence. We have no evidence that were such jobs available. Mrs Hunt was unsuccessful in her search for a job. The Secretary of State has adduced no evidence to show that Mrs Hunt could have found a job if she had tried harder or of what she could have earned. We therefore make no findings about it."
"In our judgment any damages awarded to Mrs Hunt should not be reduced to reflect any failure to mitigate her loss. ... The Secretary of State has adduced no evidence that Mrs Hunt could have obtained a job if she had tried harder or of what salary she could have earned had she tried. In those circumstances we make no deduction."
"It seems to us, taking into account Mrs Wheeler's financial situation at the time of discharge; the fact that she had completed nine years on5th April 1985 and was very near her promotion to Sergeant; the fact that she made efforts to discover whether she would be permitted to stay on and the fact that she was better looking for a job very shortly after the birth of the first child, there was no chance at all that t she would not have returned to the Army after taking maternity leave for that first child."
"We bear in mind that statistics of that kind only take us some of the way because we have to consider the chance that this woman would have been amongst the persons who stayed."
"We have looked very carefully at what she actually did after discharge ... In making our assessment, we have also borne in mind all the circumstances including, particularly, the incentives Mrs Wheeler would have had for staying in, balanced against the incentives for leaving."
"In this case the Secretary of State has adduced no evidence on the basis of which we can arrive at any figure by which Mrs Wheeler's damages should be reduced to reflect a failure to mitigate her loss. However, we have regard to the Gardiner-Hill case ... and therefore, although Mrs Wheeler may have failed to make sufficient effort to mitigate her loss, we make no finding about it."
"All these factors are arguable."
"In the view of all the members of the Tribunal compensation for the applicant should be assessed on the basis that she would have reached the rank of Lance Corporal after 10 years service. There is no evidence upon which the Tribunal can reasonably assess a chance of further promotion of Corporal."
"In the view of the Tribunal the market value of an applicant with three young children is very low indeed."
"The Tribunal has also to assess the validity of the actions of the applicant in mitigating her loss. In the view of all the members of the Tribunal she could not reasonably be expected to do more than she did to secure employment for the first five years after the birth of her first child. It is perfectly true that for much of that time she was fit enough to work and, had she remained in the Army would have worked. The issue of whether she could work is not in question, what the Tribunal has to consider is whether she could reasonably have obtained other employment."
"That by the date of this hearing the applicant should have reasonably built up her earning capacity to full-time employment at a rate of at least£8000 per year. It seems to the Tribunal that the best way to assess the ascending income is to take a median of£4000 and multiply it by the period of 7 years. In the view of the Tribunal, therefore, the applicant should have earned not less than£28000 in alternative employment by the date of this hearing and that amount is to be set off against her loss of income in her Army post."
"As to the award we have when completing our calculations stood back and used a due sense of proportion and we set out the award. This required the Tribunal to deliberate at length at each stage of its percentage chance consideration and to pay due regard to its findings of percentage chances at the preceding stage. We appreciate there is a school of thought that would calculate such chances on a percentage of a percentage but had we adopted such a method we would not have reached a just and sensible award and would have had to reappraise our chance findings."
"Any applicant is under a duty to mitigate or reduce her loss as far as she is able. It is for the employer to show that she has failed to do so. They have failed to adduce evidence by cross-examination or by evidence adduced to show that failure."
"We are not satisfied that this applicant has done everything that is reasonable to mitigate her loss. Therefore although it seems likely that there may have been a failure on her part to take active steps to mitigate her loss we have no evidence on the basis of which we can arrive at a figure which reflects that failure to mitigate and therefore we make no finding on it."
"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 ."
"due to the fact that I am considering terminating my service in the latter part of 1986, I do not wish to be considered for any more career courses."
"We rate that prospect as 100%. However, we rate the prospect of her return to service after maternity leave to be nil."
"It was clear to us from seeing and hearing Mrs Anderson that she still feels upset and bitter about the circumstances in which she left the Army ... she expressed in strong terms the injury to her feelings which she experienced in respect of her discharge."