[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bond v Ministry Of Defence [1995] UKEAT 357_95_1212 (12 December 1995) URL: http://www.bailii.org/uk/cases/UKEAT/1995/357_95_1212.html Cite as: [1995] UKEAT 357_95_1212

[New search] [Help]

BAILII case number: [1995] UKEAT 357_95_1212

Appeal No. EAT/357/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12th December 1995

THE HONOURABLE MR JUSTICE KEENE

MR P DAWSON OBE

MR J A SCOULLER

---

MRS GAIL BOND          APPELLANT

MINISTRY OF DEFENCE          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant

For the Respondents


 


RESERVED JUDGMENT

MR JUSTICE KEENE:

Brief Chronology:

27th March 1957: Date of Birth

4th February 1975: Joined R.A.F. on six year engagement (later 12, then 15)

26th November 1977: Married R.A.F. husband

17th October 1985: Promoted Sergeant

January 1986: Husband applied for Embassy posting

8th May 1987: Discharged from the service because of her pregnancy

12th September 1987: Birth of first child

November 1988: Husband posted to Germany

February 1989: Joined husband in Germany

20th June 1991: Birth of second child

26th November 1992: Returned to U.K. on husband's posting to Uxbridge

13th February 1995: Decision by Industrial Tribunal on compensation.

The Appellant, Gail Bond, enlisted in the R.A.F. on 4th February 1975 on a six year fixed engagement shortly before attaining the age of 18. She later extended her engagement to 12 years and then subsequently to 15 years, with the result that it would have expired on 3rd February 1990. Mrs Bond was an administrative clerk and later a personnel administrator. She had an exemplary record throughout her service career and was promoted to the rank of Sergeant on 17th October 1985. She married her husband on 26th November 1977. Mr Bond was also serving in the R.A.F.. Mrs Bond was the daughter of a regular R.A.F. serviceman.

In 1985 she was nearing the end of her 12 year engagement and had by then been married for eight years. She and her husband decided that it was an opportune time to consider planning to have children. Since this would mean that Mrs Bond would be discharged from the R.A.F. upon pregnancy and that her income would then be lost to them, they concluded that this loss might be made good if Mr Bond applied for an overseas Embassy posting. They recognised that if he received an Embassy posting there was possibility that Mrs Bond could remain in the R.A.F.. Mr Bond was informed that he had been selected for posting to the Malaysia Embassy which was due to commence in March 1988. In the meantime Mrs Bond discovered that she had become pregnant in February 1987 and she was discharged from the R.A.F. on 8th May 1987. She said in evidence to the Industrial Tribunal:

"No one was horrible to me. I was happy. I was sad and disappointed at the rule which required me to leave the job. I thought there was a reason for it. In retrospect I was angry if it was a rule in 1978."

Her daughter was born on 12th September 1987. The planned posting of Mr Bond to the Malaysia Embassy fell through because Mrs Bond felt it necessary to provide a home for her mother, a circumstance which had not been foreseen. Mr Bond was instead posted to R.A.F. Laarbruch in Germany as from November 1988 and was joined there by his wife in February 1989. Mrs Bond registered for employment with the Civil Labour Office at the base but no suitable offers of employment were received. Her second child was born on 20th June 1991. They returned to the United Kingdom on 26th November 1992 when Mr Bond was posted R.A.F. Uxbridge.

The Industrial Tribunal was not impressed by the Appellant's efforts to obtain employment after her discharge from the R.A.F.. Although she registered at the Job Centre following her discharge from the R.A.F. on 8th May 1987, the Tribunal concluded that this was more for the purpose of qualifying for employment benefit than with any serious intention of seeking employment. She said in evidence that she was unlikely to obtain employment when she was five months pregnant and that she did not start looking for work until after the birth of her first child. The Tribunal concluded that at this stage Mrs Bond was more concerned with her domestic interest than in actively seeking employment.

It reached essentially the same conclusion in respect of the period from 1988 onwards when she was initially in Germany and subsequently back in the United Kingdom. In its extended reasons the Industrial Tribunal stated that during her husband's posting to Germany the Appellant was more concerned with her family and her domestic interests than in actively seeking employment. Their over all conclusion on this aspect was as follows:

"The conclusion we reach is that Mrs Bond is an able and sensible woman who had a planned family and a career break from the date of her discharge from the R.A.F. in May 1987 and following her return to the United Kingdom she has put the interest of her family in front of pursuing a career of her own before her children are established in full-time schools."

There are four topics with which the Industrial Tribunal dealt which are relevant to this appeal. Those are the assessment of the Appellant's financial loss. The award for injury to her feelings, the issue of aggravated damages and finally the calculation of interest. On the first of these, the financial loss, the Tribunal noted that it was an act of discrimination to discharge compulsorily Mrs Bond from the R.A.F. on 8th May 1987 and that consequently the Tribunal had the task of restoring the Appellant's equality of opportunity which was not observed when she was so discharged. It quoted a passage from the European Court of Justice decision in Marshall No.2. [1993] IRLR 445:

"Where financial compensation is the measure adopted in order to achieve the objective ... 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 then quoted the hypothetical questions as suggested in Ministry of Defence v Cannock [1994] ICR 918 and instanced a number of other matters to which it had had regard. Amongst other things it said this:

"The fact that Mrs Bond was planning to have a family and contingency plans were made before the commencement of her pregnancy which would have entailed her leaving the service is not conclusive evidence that she would have left the R.A.F. voluntarily in any event. The contingency plans were made in the knowledge that she would be compulsorily discharged in the sixteenth week of pregnancy. She did not have a child earlier in her career, as her husband would have wished because it would have resulted in her discharge. As Mr Allen has reminded us, this was subjecting her to a discriminatory condition throughout her service career which was illegal from 9th August 1978 when the Equal Treatment Directive failed to be put into force under domestic law. However that is not an issue relevant to the compensatory award for financial loss sustained."

The Tribunal observed that the Appellant had had access to information about terms and conditions of service in the R.A.F. and that if she seriously wished to continue her service career after discharge it was to be expected that she would have taken active steps to re-enlist in the R.A.F. as soon as possible after the birth of the first child. They noted that she had given as her reason for not applying to re-enlist that she knew that the regulations were changing but that it seemed to her that she would "have to make a lot of affirmations and get very little back" and that she would have "no right to her former trade or rank". That last point, according to the Tribunal, was less than accurate. It concluded that her real reason for not re-enlisting was that she did not wish to do so because she was planning to have another child. It took account also of the statistical evidence placed before it and finally concluded on this issue of financial loss in the following terms:

"It is impossible to be categorical in assessing the chances that Mrs Bond would have returned to work if she had been given maternity leave and the opportunity to return and how long she then might have continued in the service. Having regard to all the matters we have considered we conclude that it is more likely that she would have left the R.A.F. voluntarily prior to the birth of her first child in order to have a planned family at that stage in her life than that she would have returned to service after maternity leave. Even if she had continued in service until the expiration of her 15 year engagement on 3 February 1990, it was in the highest degree improbable that she would have completed a 22 year engagement. We conclude that the main financial loss resulting from her discriminatory discharge from the R.A.F. was that she was denied the opportunity of maternity leave and her discharge on 8 May 1987 was premature. This may be expressed either as a 25% chance that she would have served until the completion of her 15 year engagement on 3 February 1990 or that the full measure of the financial loss flowing from her discriminatory discharge was 8¹/₂ months loss of net earnings from the date of her discharge on 8 May 1987. As we would not have expected Mrs Bond to seek alternative employment during a period of maternity leave before and immediately after the birth of her child we make no reduction for failure to mitigate. In seeking to achieve a clear and straightforward result we have disregarded the fact that under the R.A.F.'s present paid maternity leave regulations, maternity pay is refundable if the airwoman fails to return to work following her maternity leave. By the same token we exclude any consideration of loss of pension benefits in the period covered by the award."

The main issue on this appeal concerns this assessment of financial loss. On behalf of the Appellant, Mr Allen makes one main point and three others which he rightly describes as smaller points. It is convenient to take the smaller points first. Thus it is argued that the passage which we have just quoted contains certain inconsistencies. Mr Allen contrasts the Tribunal's statement that "it is impossible to be categorical in assessing the chances that Mrs Bond would have returned to work ... and how long she then might have continued in the service" with the fact that they assessed chance of staying on for a full 22 year engagement as in effect zero. We see no conflict there. The Tribunal assessed her chances of completing a 15 year engagement as being 25% and her chances of completing 22 years as effectively zero. That is a careful, graduated assessment of her chances and is in no sense inconsistent with the statement that it was impossible to be categorical. It is also argued that it was inconsistent of the Tribunal in that same paragraph to have found that there was a 25% chance of Mrs Bond returning to the service and completing a 15 year engagement, yet at the same time making no deduction for the maternity pay which she would have received and would have had to repay if she failed to return to work. It seems to us that the Tribunal was deliberately approaching that last aspect of maternity pay on a broad basis and possibly erring on the generous side. The Respondent does not appeal against that generous approach and indeed, the original cross-appeal in this case has been abandoned. We can see no error of law in the approach adopted by the Tribunal on this point.

The second of Mr Allen's small points concerns the Tribunal's approach to the matter of possible re-enlistment in the R.A.F. after the birth of the Appellant's first child. It is contended that a woman cannot be expected to apply for re-enlistment into a force which is continuing to operate an unlawful discriminatory policy. Consequently it is an irrelevant consideration when assessing the percentage chance of a servicewoman having remained in the force for the whole of a 15 or 22 year engagement. Mr Allen emphasises the Tribunal's conclusion on this, namely that the Appellant's real reason for not re-enlisting was that she did not wish to do so because she was planning to have another child. That, he says, shows that she was being deterred from re-enlisting by the unlawful discriminatory policy about pregnant servicewomen.

Taken by itself, we accept that that one sentence could seem to bear that suggested meaning. However it is necessary to see it in the context of the decision as a whole. The Tribunal had already concluded by this stage in its decision that the Appellant had had a planned family and a career break from the date of her discharge in May 1987 and had put the interests of her family in front of pursuing a career of her own before her children were established in full-time schools. That conclusion related to the possibility of the Appellant pursuing any career, not simply one in the R.A.F.. It seems to us from that that it is clear that the Tribunal in the passage now being criticised was simply indicating that the Appellant's real reason for not re-enlisting formed part of that general approach on her part.

The last of the three minor points taken on financial loss by the Appellant is that there was no evidential basis for the Tribunal's conclusion that after her discharge Mrs Bond took no active steps to seek employment before joining her husband in Germany. It is said that the evidence indicates that she did look for work and did register at the Job Centre. In our view there is nothing in this point. The Tribunal below heard the evidence about the Appellant's registration at the Job Centre and her other evidence and concluded that she did not have any serious intention of seeking employment. We have seen the Chairman's Notes of Evidence. In the light of those it cannot be concluded that the Tribunal was perverse in reaching that conclusion or the conclusion that she took no active steps to seek employment, if that is construed in a realistic way. There was evidence on which a reasonable tribunal could arrive as those findings.

We turn therefore to the main submission advanced on behalf of the Appellant on the topic of her financial loss. It is argued that the Tribunal were wrong in regarding as irrelevant to financial loss the fact that the Appellant had been subject to a discriminatory condition throughout her service career, a condition which was illegal from 9th August 1978. In particular it is said that the unlawful policy of the Respondent prevented the Appellant from having a child earlier in her career as her husband would have wished. Reference is made to a passage in the Appellant's evidence, as recorded in the Chairman's Notes of Evidence, where she said:

"After marriage discuss family. My husband wanted (a child) straight away. I wanted to see the end of my 12 years. If able to return I would have had my first child much earlier."

The argument is that the Tribunal should have asked itself the question: What would have happened in the absence of the unlawful policy? Consequently they should have approached the assessment of compensation on the basis that the Appellant would have become pregnant in her early 20's, had there been no unlawful policy, instead of approaching it on the basis of her actual pregnancy at the age of 30. Mr Allan relies on the decision of the European Court of Justice in Marshall v Southampton Area Health Authority No. 2 [1993] ICR 893 and in particular the following passages:

"19. The purpose of the Directive is to put into effect in the member states the principle of equal treatment for men and woman as regards the various aspects of employment, in particular working conditions, including the conditions governing dismissal.

24. However, the objective is to arrive at real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. As the court stated in the Von Colson case, at page 1908 para 23, those measures must be such as to guarantee real and effective judicial protection and have a real deterrent effect on the employer.

26. Where financial compensation is the measure adopted in order to achieve the objective indicated above, 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 the applicable national rules."

It is submitted that once the Respondent had admitted that the dismissal of the Appellant was unlawful, the right approach was to apply the tortious test for damages, which in the circumstances of this case would have meant asking what would have happened if there had not been this unlawful discriminatory policy in force at all at any time since the Directive. Had the Tribunal done that, they would have concluded that there was a chance that what would have happened would have been that the Appellant would have attempted to start a family much earlier on in her married life and would have returned to work in the R.A.F. afterwards. At that stage she would have been only, say, 23 with a long potential career in the service ahead of her. In effect, it is argued that the Tribunal should have constructed a hypothetical life and career for the Appellant from early in her marriage rather than from the date of her dismissal. It is recognised that if this argument were to be accepted, then the matter would have to go back to the Tribunal for it to assess what the chance would have been of this happening and that a tribunal might conclude that the Appellant's career in the R.A.F. would have ended earlier than they had so far concluded it would. But it could lead to the Tribunal putting a higher figure on the chance of her serving for 15 years or indeed for the full 22 years engagement.

In considering this argument, it is important to identify the wrong in respect of which compensation is being claimed. There is no doubt that under the Equal Treatment Directive as interpreted in Marshall No. 2 discrimination during employment on grounds of sex may form the basis for a claim for compensation if loss is suffered as a result thereof. However the claim in the present case was one seeking compensation for loss flowing from the unlawful discharge of the Appellant from 1987. The originating application stated that the complaint related to "dismissal on the grounds of pregnancy contrary to the SDA read with the Equal Treatment Directive", and despite being amended with leave on one occasion it remained in this form throughout the hearing below. There was never any amendment to it to seek to claim for any loss resulting from earlier acts of discrimination before 1987. Indeed no financial loss at any earlier stage has ever been identified. It seems that it was suggested during the closing speech on behalf of the Appellant before the Industrial Tribunal that the wrong for which compensation was being sought was the application to her of the unlawful Queen's Regulation as a working condition throughout her career in the R.A.F., but this was clarified in argument before us. Mr Allen made it clear in response to a question from us that he was arguing that the financial loss resulting from the dismissal should be assessed on the hypothesis that the discriminatory policy had never existed. He was not arguing that there was a claim relating to the earlier discrimination. Thus his argument was consistent with his pleaded case. In effect it means that this point is being pursued in the context of the question of what was the financial loss resulting from the Appellant's discharge. It is said to be part of the hypothetical situation that has to be considered when one is assessing that loss flowing from discharge.

Once that is established, the Appellant's argument can be seen to be fallacious. As Mr Allen recognised, the unlawful dismissal is to be treated as a statutory tort, as was indicated by this Appeal Tribunal in the case of Ministry of Defence v Cannock (ante), and the normal tortious approach to damages will apply. That means that the measure of damages will be such sum of money as will put the injured party into the position that she would have been in, had the tortious act and resulting injury no occurred. One assumes therefore the absence of the tortious act, which in the present case was the unlawful discharge of the Appellant, but that does not mean that one should assume the absence of the policy during the period of years before the discharge took place. The proper question is: What would have happened but for the statutory tort, that is to say the unlawful dismissal? It is not: What would have happened but for the unlawful policy? That second question would have been more appropriate if the Appellant had been claiming compensation for discrimination simply because of the unlawful policy and asserting that that in itself, prior to her discharge, had caused her loss.

The Tribunal therefore was not required to approach the assessment of compensation on the hypothesis that there had never been that discriminatory policy in force since the time when the Equal Treatment Directive applied. All that it had to do was to consider what would have happened, had there been no unlawful discharge of the Appellant by the Respondent. The Tribunal did that and its decision on financial loss cannot be faulted. There was no need for it to have constructed a hypothetical life and career for the Appellant from early on in her marriage on the hypothesis that the discriminatory policy in the armed forces had never existed.

We turn next to the arguments raised on the issue of the injury to the Appellant's feelings. This is of course a well established head of compensation, being provided for in Section 66(4) of Sex Discrimination Act 1975. The Tribunal found that there was no evidence that the Appellant sustained any substantial or unusual injury to her feelings. Nobody treated her inconsiderately. Although she was disappointed at being required to leave her job she felt at the time that there must have been a reason for it. It was only in retrospect that she was angry that that rule had existed in 1987. It awarded the Appellant the sum of £750.00 for injury for feelings, saying that "in fixing upon this amount we have taken account of the effect upon Mrs Bond of serving under a discriminatory policy and her anger upon subsequently discovering that the policy was unjustified and illegal." It is submitted that that sum does not adequately reflect the impact on her feelings. Our attention has been drawn to a number of cases under the Sex Discrimination Act 1975 and the Race Relations Act 1976, as well as in other cases concerning pregnant servicewomen. Amongst the latter reliance is placed on the recent decision of this Appeal Tribunal in Ministry of Defence v Anderson, one of the appeals decided as part of the group headed by Ministry of Defence v Hunt [unreported: judgment deliver 8th December 1995]. In Anderson this Tribunal increased an award of £250.00 for injury to feelings to the sum of £750.00, and the point is made that in that case the servicewoman had already formed an intention to leave in any event. It should, however, also be noted that the Industrial Tribunal in that case found that Mrs Anderson still felt "upset and bitter about these circumstances in which she left the Army" and expressed in strong terms the injury to her feelings which she experienced.

In Alexander v Home Office [1988] ICR 685, the Court of Appeal increased an award for injury to feelings in a race discrimination case from £50.00 to £500.00, in the situation where the trial judge had found that the plaintiff had not suffered any substantial injury to his feelings. Reference was also made to the Court of Appeal decision in North West Thames Regional Health Authority v Noone [1988] ICR 813, where damages under this head in a race discrimination case were reduced from £5,000.00 to £3,000.00. We are told that the current equivalent in real terms would be around £4,000.00 today, and that the present day value of the award in Alexander would be about £720.00. We find ourselves little assisted by the decision in Noone, because there was in that case a finding that the complainant had suffered severe injury to her feelings.

In the recent decision in Anderson (ante) this Appeal Tribunal stated that a perusal of recent authorities on compensation for injury for feelings in cases of race discrimination established that there is a emerging picture of £500.00 being "at or near the minimum". Reference was there made to the decisions in Sharife v Strathclyde Regional Council [1992] IRLR 259, Deane v London Borough of Ealing [1993] IRLR 209 and to Alexander (ante). In the present case the Tribunal found that there was no evidence that the Appellant had sustained any substantial or unusual injury to her feelings. She was angry in retrospect that she had been discriminated against in that way and it was that factor which led to the Tribunal awarding the sum of £750.00 for injury to feelings. In short, her feelings were ones which occurred after the event. It is possible that another Tribunal might have awarded the Appellant a little more, but we do not conclude that this Tribunal was acting perversely in arriving at that figure. It was in a far better position that we are to judge the extent of the effect upon her feelings of what had happened to her and we do not accept that there is any basis on which this Appeal Tribunal should interfere.

The next topic is aggravated damages. The Tribunal below made no additional award in respect of such damages. They were claimed on the basis that there had been a deliberate failure of the Ministry without any reason to implement the requirements of the Equal Treatment Directive. It was argued that aggravated damages were appropriate where the manner in which wrong was committed was such as to injure the complainant's proper feelings of pride and dignity and as such were an element to be included in the award of compensation for injury to feelings. The Tribunal said that the award of compensation for injury to the Appellant's feelings took into account the effect upon her of the maintenance of the discriminatory policy after the date when it should have been revoked.

In argument before us it is submitted that an additional award in respect of aggravated damages should have been made because the conduct of the Ministry was clearly contumelious in that it was both haughty and overbearing and showed a complete disregard for her rights. In support of this, reference is made to the fact a questionnaire under the Sex Discrimination Act 1975 the Respondent stated that it was not required or prepared to say who was responsible for the decision not to comply with the obligations under the Equal Treatment Directive, and made the same response to questions seeking to discover what steps it took to implement Directive and what periodic reviews were carried out prior to the implementation on 17th December 1991. It is also submitted that the Tribunal below confused aggravated damages with exemplary damages.

There is no basis for that last submission. The Tribunal below certainly referred to exemplary damages but only in order to distinguish them from aggravated damages, a necessary action on its part given the somewhat ambiguous way in which the Appellant's arguments had been presented on this topic. Further, it would be wrong for aggravated damages to be awarded because of the Ministry's refusal to disclose the information being requested in the questionnaire. It is clear from the decision of this Appeal Tribunal in Ministry of Defence v Meredith [1995] IRLR 539 that there is no obligation on the employer in such circumstances to make such disclosure. In that case it was said at page 543:

"It is clear that in 1986 at the time of her dismissal, the Respondent was unaware that her dismissal was an unlawful act of discrimination. She knew that she had been dismissed and her feelings may have been injured even though she did not know that her dismissal was unlawful. She may be able to claim damages for injury to feelings. Such injury may have been aggravated by the remarks of her medical officer. But they cannot have been aggravated by any improper conduct or motive on the part of her employer of which she was wholly unaware. Not being aware that the employer's conduct was even unlawful, she could not have even suspected any impropriatory of conduct or motive. What she now seeks to do is to investigate the state of knowledge and attitudes of the M.O.D. and Army authorities at the time of her dismissal in 1986 in the hope that she might then be able to allege that she had had greater grounds for suffering injury to her feelings than she had then realised. If there is such a thing as a fishing expedition for discovery this must be it."

We accept the submission made by Mr McManus that to draw an adverse inference from such non-responses to questions and to award aggravated damages as a result would be to circumvent the decision Meredith. Moreover, as was emphasised in that case, there must be a causal connection between the defendant's conduct and the injury to feelings in respect of which the aggravated damages are claimed. The mere fact that the Appellant has learned after making her application to the Industrial Tribunal, from her legal advisers that policy in respect of pregnant servicewomen was or may have been discussed at a higher level during the period of her service cannot give rise to any claim for aggravated damages.

There was, so far as can be seen, no evidence before the Industrial Tribunal that the Respondent knew that the policy was unlawful during the time of the Appellant's service. In those circumstances, and given the fact that at the time she did not experience anything more than disappointment at being discharged, there was nothing wrong in the Tribunal's decision to make no additional award in respect of aggravated damages but to regard the award of compensation for injury to her feelings as being adequate to take into account the effect upon her of the continuation of the policy during her service.

Finally the Appellant challenges the way in which the Industrial Tribunal dealt with the matter of interest. Under the Sex Discrimination and Equal Pay (Remedies) Regulations 1993 an Industrial Tribunal has the power in cases of awards under the sex discrimination legislation to include interest on the sums awarded. Except in the case of an award for injury to feelings (and no issue arises in this appeal on that aspect of the Tribunal's decision), it is provided by Regulation 7(1)(b):

"Interest shall be for the period beginning on the mid-point date and ending on the day of calculation."

The mid-point date is defined as the date halfway through the period beginning on the date of the contravention or act of discrimination complained of and ending on the day of calculation. The "day of calculation" is defined as the day on which the amount of interest is calculated by the Tribunal (see Regulation 5). However, an Industrial Tribunal also has the power in certain circumstances to depart from the normal method of calculation as set out in Regulation 7(1)(b). Paragraph (3) of Regulation 7 provides as follows:

"Where the Tribunal is of the opinion that-

(a) there are exceptional circumstances, whether relating to the case as a whole or to a particular sum in an award, and

(b) those circumstances have the effect that serious injustice would be caused if interest were to be awarded in respect of the period or periods in paragraphs (1) or (2),

it may -

(i) calculate interest or as the case may be interest on the particular sum for such different period, or

(ii) calculate interest for such different periods in respect of various sums in the award,

as it considers appropriate in the circumstances, having regard to the provisions of these Regulations."

In the present case the Industrial Tribunal decided that interest should be calculated from the mid-point date between 8th May 1987 and the date of the decision. The Appellant submits that that was wrong in law, because the Tribunal should have recognised that the conventional approach would work a substantial injustice and that the Tribunal should therefore have exercised its power under Regulation 7(3) to depart from the normal approach.

Mr Allen's argument runs as follows. The normal approach to the calculation of interest as embodied in Regulation 7(1)(b) derives from the practice adopted by the Courts in calculating interest in personal injury cases in respect of continuing losses of earnings from accident to date of trial. However, it is not an appropriate approach where there was not a continuing stream of losses from accident to date of trial but a shorter period of loss which finished significantly before the date of computation. Mr Allen recognises that the Court of Appeal decision in Dexter v Courtaulds Ltd [1984] 1 WLR 372 is against him on this argument, but he points out that another Court of Appeal decision, Prokop v Department Health and Social Security [unreported; judgment dated 5th July 1983], was not cited to the Court in Dexter. In Prokop the Court took the view that the half rate approach was only applicable in cases where the special damages comprise more or less regular periodic losses which are continuous from the date of the accident to the date of the trial, May LJ, saying this:

"If there is any general view in any quarter that the interest on special damages is in any event to be calculated at half-rate, when the losses do not continue from accident to trial, then I think that this is wrong and should not hereafter be followed." (Pages 16-17)

It is then argued that if one has regard to the present case, the Industrial Tribunal had assessed the Appellant's financial loss flowing from her discriminatory discharge as being 8¹/₂ months loss of net earnings from the date of her discharge on 8th May 1987. In those circumstances, the Tribunal should have departed from the normal approach because the Appellant's loss ended in late January 1988. It is said that she should have been awarded interest from a mid-point between the date of discharge, 8th May 1987, and late January 1988 instead of from a mid-point between 8th May 1987 and 13th February 1995, the date of the Tribunal's decision. This would make a difference of over 3 years in the period over which interest would be calculated.

We can see the force of this submission, were the facts as Mr Allen presents them. However what the Tribunal actually decided was that it was unlikely that the Appellant would have returned to the service after maternity leave. They stated:

"This may be expressed either as a 25% chance that she would have served until the completion of her 15 year engagement on 3 February 1990 or that the full measure of the financial loss flowing from her discriminatory discharge was 8¹/₂ months loss of net earnings from the date of her discharge on 8 May 1987."

We were told by Counsel that those two different ways of putting the matter made no difference in financial terms to the calculation of the sum to be awarded before interest. On the basis of the first way in which the Tribunal put the matter, namely a 25% chance of the Appellant serving until 3rd February 1990, there is much less force in the argument that injustice results from the Tribunal's decision to follow the normal approach Regulations to the calculation of interest. The factual situation of a 25% chance of completing an engagement ending some time before the Tribunal decision is not uncommon in these cases concerning pregnant servicewomen. In those circumstances the Tribunal was not perverse in adhering to the normal approach to interest under Regulation 7(1) and declining to exercise its discretion under Regulation 7(3). It was entitled to take the view that "exceptional circumstances" did not exist in this particular case. That is a necessary precondition to the exercise of the power under Regulation 7(3). The fact that the Tribunal then expressed that same loss in a different manner cannot render something with is unexceptional exceptional.

The decision was criticised on behalf of the Appellant for not explaining why the Tribunal had found that there were not exceptional circumstances. In our view there is no need for a tribunal to spell out its reasons for adhering to the normal approach as embodied in Regulation 7(1). It is implicit in such a decision that it has found that the circumstances were not exceptional. Had it concluded that there were exceptional circumstances, then one would have expect to see reasons given specifically to explain that part of the decision, but that is not required if a tribunal is adhering to the normal approach to the calculation of interest. The Appellant's arguments on the calculation of interest are therefore rejected.

It follows that this appeal must be dismissed.