The Employment Appeal Tribunal laid down general guidelines to assist industrial tribunals in assessing compensation in other sex discrimination cases in the future.
The Sex Discrimination Act 1975 rendered unlawful acts of discrimination on the ground of sex in the employment field. Those whose rights were infringed could complain to an industrial tribunal, who could award compensation which, since 1993, had no upper limit. The Act excluded the armed services from its application and until 1990 women in the armed services resigned or were dismissed on becoming pregnant. In 1991, the MoD accepted that its policy was unlawful under the Equal Treatment Directive. Women who had been dismissed under the unlawful policy brought claims against the MoD.
The Employment Appeal Tribunal was asked to lay down guidelines which industrial tribunals might apply when determining the amount of compensation for loss of employment and injury to feeling for admitted unlawful acts of discrimination by the MoD.
David Pannick QC, Richard McManus and David Wolfe (Treasury Solicitor) for the MoD; Patrick Elias QC, and Dinah Rose (Steele & Co, Norwich) for the applicants.
MR JUSTICE MORISON said that for the purpose of calculating the loss sustained by a woman who was dismissed as a result of her pregnancy, the hypothesis was that, instead of dismissal, she would have been given a reasonable period of maternity leave and an opportunity to resume her commission or engagement with no loss of service or rank. The hypothesis which should be made when assessing her loss was that people working in the armed services had rights equivalent to those employed in civilian life.
The need for industrial tribunals to keep a sense of due proportion when assessing compensation was stressed. A tribunal should not make an award of a size which was more appropriate to compensate a person who had some kind of long-term disability. Large awards, running into many tens of thousands of pounds, seemed quite out of proportion to the wrong done.
The first hypothetical question was what were the chances that had she been given maternity leave and an opportunity to return to work, she would have returned. The answer was based on the best assessment the tribunal could make having regard to all the available material, including statistical material. The tribunal would wish to consider what happened after the baby was born.
The second hypothetical question was what the chances were that the woman would have been in a position to return to work, had she been given the opportunity. Looking at what she, and, where appropriate, her partner, did after the baby was born might throw some light on the question.
Tribunals should approach the question of mitigation on the hypothesis that the applicant was fully fit for onerous employment duties six months after the birth of the first child. After the six-month period she was expected to be in the job market actively looking for work and applying for jobs, and if she was not, then however understandable her behaviour, she could not recover damages for loss of employment thereafter.
When assessing damages for injury to feelings, it was wrong for tribunals to make an award on the basis that it must have some kind of deterrent element. An award of damages for injury to feelings was solely based on principles of compensation. Compensation should be full. Full compensation was the deterrent.
Compensation for injury to feelings was not automatic. Injury must be proved. If an award for injury to feeling was to be made, and the tribunal wished to reflect an element for loss of congenial employment, that element of loss would require some thought. Many of the dismissed women might have found other congenial employment or, if they had decided to 'stay at home', might have obtained satisfaction from that role. The loss must be measured by taking into account any off-sets that there might be.
Industrial tribunals should approach the loss of pension rights in the same way they did when assessing such a loss in the cases of others in the public service who did not have a funded scheme, but who enjoyed a pension underwritten by the Government.Reuse content