Debique v Ministry Of Defence (Sex Discrimination : Other losses) [2011] UKEAT 0075_11

SUMMARY

SEX DISCRIMINATION – Other losses

RACE DISCRIMINATION – Other losses

Appellant gives notice to leave the Army as a result of sex and race discrimination (see [2010] IRLR 471) – During notice period offered a new posting on the basis that it would resolve the childcare difficulties which had given rise to the discrimination claim – Offer not accepted - At remedy hearing awarded compensation for injury to feelings but no compensation for loss of earnings, on the basis that she had failed to mitigate her loss, and no aggravated damages.

Held, dismissing appeal:

(1) Tribunal entitled to find that Appellant had failed to mitigate her loss – Wilding v British Telecommunications Plc [2002] ICR 1079 followed

(2) Tribunal not obliged to make an award of aggravated damages

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1. The Appellant is originally from St Vincent. In 2001, at the age of nineteen, she was recruited into the British Army; she served in the Royal Signals. In August 2005 she gave birth to a baby daughter. She was a single parent, and in the months following her return from maternity leave in September 2006 she found it difficult to combine her responsibilities as a mother with her responsibilities as a serving soldier. Her difficulties were not at first treated sympathetically, and she was in due course subjected to disciplinary procedures, which led to a formal warning. On 20 April 2007 she gave one year’s notice to terminate her service.

2. On 30 April 2007 she commenced proceedings in the Employment Tribunal against the Ministry of Defence (“the MoD”), alleging indirect discrimination under the Sex Discrimination Act 1975 and the Race Relations Act 1976. There was also a claim for unfair dismissal, but it was in due course appreciated that the Employment Tribunal had no jurisdiction to entertain such a claim in the case of a serving soldier, and the claim was dismissed. Her discrimination claims were upheld by an Employment Tribunal sitting at London Central chaired by Employment Judge Gordon, following liability hearings in June and September 2008; and the decision of the Employment Tribunal was itself upheld by this Tribunal in October 2009. The question of liability involved some interesting issues but we need not set them out here; more detail can be found in the judgment of this Tribunal given by Cox J and reported at [2010] IRLR 471. The only specific point that we ought to mention, because it is material to the issues that we have to decide, is that a central aspect of the Appellant’s case was that the immigration rules (for which the MOD as part of “the Crown was” held to be responsible) were insufficiently flexible to allow someone in the Appellant’s position, i.e. a Commonwealth soldier who was a single mother, to obtain the support of a family member: the Appellant’s half‑sister would have been willing to come to this country on a long‑term basis to help look after her child, but she was unable to obtain the necessary leave.

3. Following the dismissal of the MoD’s appeal there was a remedy hearing before the same Tribunal over four days in April 2010. By a Judgment and Reasons sent to the parties on 17 June the Tribunal awarded the Appellant £15,000 by way of compensation for injury to feelings (with interest); but it declined to make any award for loss of earnings, on the basis that the Appellant had failed to mitigate her loss. Specifically, it held that she had unreasonably refused an offer made to her during the period of her notice of a posting that would, as the Tribunal found, have adequately addressed her childcare difficulties. We return to the details in due course. One consequence of that finding was that it did not take into account in its award for injury to feelings any element for the loss to the Appellant of her “congenial employment” as a soldier. The Tribunal also declined to make an award of aggravated damages.

4. Sensibly, the Tribunal considered what the position would be if its decision as regards failure to mitigate were subsequently held to be wrong. In the part of its Reasons headed “Alternative Findings” it did not calculate an actual award for loss of earnings, but it made the principal findings that would have allowed such an award to be calculated if necessary.

5. The Appellant appeals against the decisions not to make any award for loss of earnings, for loss of congenial employment and for aggravated damages. She has also appealed, and the MoD has cross‑appealed, against some elements in the “alternative findings”; but those issues only become live if the primary appeal against the refusal to make any award at all in respect of loss of earnings succeeds. On the appeal the Appellant has been represented by Mr Mohinderpal Sethi of counsel and the MoD by Mr Keith Morton QC. Mr Norton appeared before the Tribunal, but Mr Sethi did not: the Appellant was unrepresented. We have not in the event found it necessary to hear from Mr Morton, though we are grateful to him for his helpful skeleton argument.

(A) LOSS OF EARNINGS/FAILURE TO MITIGATE

6. The Tribunal’s findings in relation to the offer that was the basis of its finding that the Appellant failed to mitigate her loss can be summarised as follows.

7. At the time that she gave her notice in April 2007 the Appellant was based at Chelsea Barracks in London. But for her notice she would later that year have had the opportunity, which it is highly likely that she would have taken, to sign up for a “class 1” training course, which would have meant her being posted to the main headquarters of her regiment at Blandford in Dorset, both to undertake that course and for a period thereafter. Typically such a posting would have been for a period of three years - that is, to some time in 2010, by which time her daughter would have been aged five. In the events that happened, following the giving of her notice the Appellant was initially told that she would serve out her posting in London; but in the autumn of 2007 the MoD began, albeit belatedly, to take a more sympathetic approach to her case. The Treasury Solicitor sought, and the Appellant agreed to, a postponement of the liability hearing then fixed for late October in order that the possibility could be explored of retaining her as a serving soldier, which the Treasury Solicitor indeed described as the MoD’s “paramount” wish. The Appellant expressed herself willing to consider any proposals “for retaining me in the service.”

8. Shortly thereafter, a Major Toze met the Appellant on 21 September and offered her a five‑year posting to Blandford - that is, two years more than the period that would normally have been involved in her undertaking the class 1 training course. By the end of that period her daughter would be seven and well embarked on her schooling. She declined that offer by email dated 26 September. On 17 October Major Grice, the Regimental Adjutant, wrote a letter setting out what was in substance the same offer as had already been made by Major Toze but with considerably more detail and more formality. The letter reads as follows:

“R SIGNALS & INT CORPS MCM DIV OFFER OF EMPLOYMENT AT BLANDFORD

1. Introduction. You will recall that an offer for you to work at Blandford, the home of the Royal Corps of Signals, was made to you on interview by your present Officer Commanding, Major J E Toze R SIGNALS on Friday 21^st September 2007. This letter will set out the details of the offer made by Royal Signals and Intelligence Corps Manning and Career Management Division (from now on throughout this letter referred to as just MCM Div).

2. Outline Career Plan. Move to Blandford as soon as reasonably possible and be employed in Technical Maintenance (TM) Troop. Progress onto your Class One Systems Engineer Technician Training (T1), this would last about 12 months. Then remain at Blandford for a full 36 month Assignment after your T1. The effect of this move would see you stable at Blandford until at least 2012. Your daughter would by then be about 7 years old.

3. The Detail. Given the situation you face presently in London, living in the Greater London area and working in Chelsea Barracks, you find yourself challenged by meeting both childcare and work/duty commitments.

4. Having considered several alternative postings that may alleviate your perceived childcare burden, while at the same time offering you a greater degree of work-life balance and stability, I suggest Blandford as a suitable move for you as you are due to undergo T1 training in the near future and would have to move to the Royal School of Signals, Blandford for that course anyway. You will be aware that the T1 course carries with it a three year return of service obligation that you would have to sign up to before starting that course. This three year return of service period would start on successful completion of that course. This you would serve at Blandford. Given the non deployable nature of being employed at Blandford, I regard this as your best course of action. Having discussed this proposal with you in June, you were not keen on my further action as I could not guarantee this move would take place at the time, for a period of five years duration after you moved. I have since engaged with MCM Div in September and obtained written confirmation (by email on 19 Sept 07) that subject to your application for NTT being withdrawn (here, it would be your action to apply to MCM Div on an AF C 6848 for withdrawal of NTT), then it would be up to MCM Div to consider your application to withdraw NTT, MCM Div were confident (should they decide to retain you) that you could move to Blandford in the very near future and enjoy a five year period of stability. You could settle for a significant period and concentrate on career while being supported. This would see you moving away from Blandford if you applied as such not before 2012.

5. From MCM Div, Maj(Retd) Brian Campbell (94561 3252), OC Support Trade Wing has made this offer to you and this can be found at Enclosure 1.

6. I have made some simple background checks and I can report that Blandford Camp has a school, Downlands School on (01258 453348) should this be required in time. More importantly for you, I can report that the Childcare network at Blandford is strong. The Childcare Coordinator is Mrs Shona Fullerton (01258 454 676). I spoke to her recently and she assured me that there was capacity for your two‑year‑old daughter. I have also visited the Blandford Camp Website at the below URL:

http://www.army.mod.uk/royalsignals/rss/blandford/index.htm

In addition, ARMY Child Welfare Support Information is available at the following URL:

http://www.army.mod.uk/soldierwelfare/familysupport/childws/index.htm

7. Career Implications and working routine. I can find no evidence to suggest that a move to Blandford would have an adverse effect on your career. On the contrary, you will be aware that Signals Office in Chief (Army) (SOinC(A)) himself is keen that the very best officers and soldiers across the Corps are sent to training establishments; here, Blandford as you know is the Phase Two training school for the Royal Signals. That said, working in a training environment will come with its own set of challenges and your time at Blandford, should you decide to go, will not be plain sailing every day. As a soldier and JNCO, you can expect to do your fair share of normal daily working, as well as your share of duties and short deployments on exercise into the local area. The positive here will be that this type of routine can be planned well in advance, and your line managers will endeavour to give you and your peers sufficient notice; this is a reasonable expectation of any serving soldier. As a single mother, you are not alone, and you may meet other soldiers in a similar situation. Here, it is up to you to make friends and together, you may find structuring your work and home/family time easier to manage.

8. Financial Implications. You will be aware that you are entitled to Service Families Accommodation. While I do not know the exact sum you would pay in rent every month, I am confident that you would find it difficult to live more cheaply outside the Army. Travel to and from work would cost nothing as you would live where you worked. The cost of moving your daughter to and from school/child care would also be minimal depending on where you sought this facility. There is medical and dental support for both you and your child on camp. As you know, this is free. Eligible parents can make use of UK Government Child Tax Credits and the childcare element of Working Tax Credits. This can offset the cost of childcare by up to 70% for the least well off families and is well worth investigating further. There is further advice on the HM Customs and Revenue or Service Families Task Force websites. Blandford camp is in my view a ‘one stop shop’ for all your needs in this regard and presents a very cost effective solution to your situation.

9. Your Action. As you are now aware, the CO has reviewed the two Formal Warnings that were issued to you on 07 February 2007 and 17 May 2007. As a result of new detailed legal advice, he has decided that they were procedurally flawed and as such has taken steps to remove them from your file. I now need you to consider this proposal and write back to me with your decision. I would appreciate this reply within the next 14 days.

10. Summary. I feel that having looked at your present situation, and having taken a long term view of both your career and your family situation, I am convinced that a posting to Blandford has the potential to alleviate your current situation. Both the employment opportunity and child care setup is in place and ready for you to make good use of from now until at least 2012. I hope you share this view in that remaining in the Army is of benefit to both your own career and your child’s needs.”

9. On 31 October the Appellant wrote again refusing the offer. Her letter reads as follows:

“RE: R SIGNALS & INT CORPS MCM DIV OFFER OF EMPLOYMENT AT BLANDFORD

Reference:

A. Interview at Chelsea Barracks with Major T Toze.

B. Letter dated 17th Oct 07.

1. In reference A I was informed of an offer being made for me to move to Blandford, after discussions with MCM Division. These discussions were presented to me in the form of a series of e‑mails. This interview was the first any such offer was made to me, contrary to one of these e‑mails. I was given three days in which to make a decision and in an e‑mail dated the 26^th September 2007, I informed major J Toze of my appreciation of the offer and my decision to decline explaining my reasons.

2. Having considered the offer and the events and conversations that have transpired in the situation as a whole I decided to decline the offer. As I previously pointed out, though this offer will offer me some degree of stability in the interim it will not solve the problem, it will only cover it. Subsequent to this posting the problem of my implied inefficiency will remain as there will still be a requirement for someone to care for her outside school hours.

3. In reference B, you proposed the exact same offer. You pointed out that I am not alone as a single mother; however, I am unaware of any other single mother in a situation similar to mine. I have considered this along with the financial implication you pointed out. I parental right [sic] and a legal responsibility to ensure my child is cared for and having been informed that the needs of the army come first, I would like to have some pointed [sic] clarified.

4. In paragraphed [sic] 9 of Reference B, you informed me that the Formal Warnings issued to me on 07 February 2007 and 17 May 2007 were procedurally flawed and are to be removed from my file. I would like you clarify to me [sic] where the procedure went wrong and the army policy with regards to the childcare provision for Foreign and Commonwealth soldiers. Can you also confirm whether the issuing of the Formal Warning were [sic] of a discriminatory nature and whether here [sic] is anything in army policy that will or should prevent this type of events [sic] from reoccurring. Your clarification of these points will be greatly appreciated and will help me arrive at a decision.

5. I await your response on the matter at hand.”

10. The Tribunal, having made the relevant findings about those offers and the background to them, considered the question of mitigation at paragraphs 58‑69 of the Reasons, which are in the following terms:

“58. Our approach to the question of mitigation is that it is for the Respondent to show to us by evidence and/or submissions that the Claimant was unreasonable not to accept the offer. The test is objective and should be made on the totality of the evidence. This includes the circumstances in which the offer was made and refused, the attitude of the employer, the way in which the Claimant had been treated and also the Claimant’s state of mind. In assessing the question of reasonableness, it is necessary for us to understand why the Claimant made the decision to reject the offer and to consider whether the reasons were unreasonable that we can find a breach of the duty to mitigate. The standard of reasonableness which we apply should suit the circumstances of the case. We would not for example, expect an employee who was angry confused and anxious as a result of an actionable wrong committed by the employer to be able to make a perfect decision. And we need to take into account that if it were not for the employer’s wrong, the employee would not need to make the decision in the first place. For these reasons we should not set the line between reasonableness and unreasonableness too high.

59. The Blandford offer would effectively have ended the indirect discrimination which we have found occurred because it would mean that the Claimant would no longer be particularly adversely affected by the provision criterion or practice which was applied to her. This is because the duties which the Claimant would have had at Blandford and the child care arrangements there, were such that she would be able to care for her child without the need for any assistance from her half sister. So this would mean that in practical terms the Claimant was put back on a ‘level playing field’ with soldiers who were British subjects which was her main concern in the Tribunal proceedings. She was or should have been aware that this was the case. The Claimant had been to the Blandford base and was aware of the facilities there. The letter of 17 October 2007 explained the position clearly and gave her the Blandford camp website address and the Army Child Welfare Service website address. It also gave the telephone numbers of the school and of the childcare co‑ordinator in case she wished to make enquiries. The Claimant was aware that her anticipated duties in Blandford and the child care facilities there were such that it was feasible for her to be posted there and to be able to look after her child too.

60. We are quite clear that the Claimant was reasonable in rejecting Major Toze’s offer made on 21 September 2007, but we think otherwise about the offer of Major Grice made on 17 October 2007. There were two critical differences between the two offers.

61. The first crucial difference was that the offer made by Major Toze was not in writing and so could not be relied on to the same extent as that made by Major Grice. The need to have the offer in writing arose from the unique nature of the offer which was being made. The Claimant was well aware of this. The offer was unique because it was based upon the premise that the Claimant would not be deployed on active service until at least 2012 when her child would then be aged seven. This is because it was to be a five year posting in a ‘non‑deployable’ unit. This was contrary to Queen’s Regulations 9.260 which requires that a soldier must be available for worldwide posting at any time. This also appears from Brigadier Cotton’s guidance on 29 November 2002 which we referred to in paragraph 114 of our preliminary decision on liability. Despite this, we can see from the email on page 169 of the bundle that internally a decision was made that the usual rule could be relaxed in this particular case. The offer involved some positive discrimination of the Claimant. If the offer were to be implemented she would be treated differently from other soldiers because of her particular child care difficulties as a Foreign and Commonwealth soldier. And such difference of treatment was not allowed by the Queen’s Regulations. So the Claimant was right to be sceptical about this offer. As she rightly said in response to the offer, it could not be ‘guaranteed’. She did not believe it would be kept to in the long run. This would mean that in her view she would end up being deployed without any proper arrangement for her child. We would emphasise that the Claimant was not unwilling to be deployed, her concern was more for the welfare of her child.

62. When the offer was put in writing in the letter from Major Grice however, it was put in much stronger and clearer terms than had been put to the Claimant in the meeting on 21 September 2007. Whilst it is true that the five year posting without deployment could not be guaranteed, it would be much less likely to happen because of the letter which was a formal document from an officer with apparent authority to make it. We heard from Major Laycock who emphasised to us that every soldier without exemption should expect to be deployed even if they are given a non‑deployable posting, but he also told us that in the light of the offer which had been made in the letter of 17 October 2007, in reality it was very unlikely that this would happen to the Claimant before 2012 as stated in the letter.

63. When testing the question of reasonableness or unreasonableness for the purpose of the duty to mitigate the Claimant’s reasonable knowledge of the likelihood of deployment is important. She was aware there was no guarantee that she would not be deployed before 2012, but from the terms of the letter a reasonable person in her position would have realised that it was very unlikely that this would happen, as Major Laycock has now told us. In the view of the Tribunal it was a mistake not to test this by accepting the offer of the transfer to Blandford and then see what happened. If she then found herself deployed, despite the additional difficulties as a Foreign and Commonwealth soldier and a single parent, on our earlier findings on liability she would have been able to raise a further discrimination case.

64. The second crucial difference was that the offer made by Major Toze did not deal with the Claimant’s disciplinary record. The Claimant was right that this was a serious omission. We have heard evidence and find that the disciplinary record is one of the things of central importance to the promotion board, and the Claimant was aware of this. When however, the Claimant was told on 15 October 2007 and this was confirmed by the letter of 17 October 2007 that the disciplinary record would be removed due to procedural irregularities, in our view she should have accepted this as a resolution of that particular problem.

65. In our finding, the main reason why the Claimant rejected the offer made on 17 October 2007 was that she did not think the five year posting to Blandford without deployment could be guaranteed, with the consequence as she put it that her child care problem was not resolved. As said above, we are of the view that she was unreasonable in not at least taking up the offer and seeing what happened.

66. At different times in her evidence the Claimant gave other explanations for her decision. One was that she did not have time to consider the offer properly. Another was that she was so advanced in her plans to leave the army that she could not change her mind about leaving. We do not think those reasons played an important part in her decision making.

67. But there was a secondary reason why the Claimant rejected the offer. This was that she was upset by all that had happened, she had lost faith in the army and had lost hope in the system. This is what she was referred [sic] to in her letters of 26 September 2007 and 31 October 2007 when she referred to ‘events and conversations involved in the entire situation’. We agree that the Claimant had every reason to feel this way. The strength of this disillusionment with the army was balanced however, by the Claimant’s love of the army. Despite all that had happened she did not wish to leave the army. This comes from her own evidence and is also demonstrat4ed by her letters of 18 September 2007 sent to the Treasury Solicitor and also the Tribunal showing that she was willing to consider a solution which would enable her to stay with the army. And so it is our finding that although the Claimant did justifiably feel let down by the army, this was not why she refused the Blandford offer, nor did it stop her from making rational decisions about the offer.

68. In addition to this, the Claimant did have access to legal advice if she wanted to take it. And she did have a further six months in the army before her notice to terminate expired when she could have reconsidered the Blandford offer if she had wished to.

69. For these reasons we find the Claimant’s decision not to accept the Blandford offer to be unreasonable and in breach of the duty to mitigate her loss.”

11. In short, therefore, the Tribunal found that it was unreasonable of the Appellant to refuse the written offer from Major Grice, which afforded her in particular a solid assurance that she would be based for five years somewhere where she could combine her military duties with her responsibilities as a parent. The position thereafter was necessarily uncertain, but the Tribunal evidently believed that it was unreasonable to refuse an offer that accorded her security for so substantial a period. It is convenient to say at this stage that it is clear from the paragraphs which we have set out that the Tribunal, which had of course initially found in the Appellant’s favour on the issue of liability and was in no way unsympathetic to her position, considered the issues carefully and conscientiously.

12. The Appellant’s Amended Grounds of Appeal raise ten challenges to that reasoning. Mr Sethi acknowledged that there was a considerable degree of overlap between the grounds, but it will be convenient if we take them in turn.

13. We should say by way of preliminary that the Amended Notice of Appeal suggests that the case raises some important questions of principle about the approach to the issue of mitigation in cases like this, where an employer offers fresh or different employment to an employee who has been unfairly and/or discriminatorily dismissed. We do not, however, believe that there is any real doubt about the relevant principles. They were reviewed in the discrimination law context in the decision of the Court of Appeal in Wilding v British Telecommunications PLC [2002] ICR 1079. The leading judgment is that of Potter LJ, with whom Brooke LJ agreed. At paragraph 37 of his judgment Potter LJ set out and endorsed the following summary of the relevant principles, which was common ground between the parties. (We note in that connection that both parties were represented by leading counsel who subsequently became Judges of this Tribunal.) Paragraph 37 reads as follows:

“As was made clear in the judgment of the EAT, (at paragraph 64) the various authorities referred to by the Tribunal (see paragraph 22 and 23 above) and Payzu v Saunders [[1919] 2 KB 581] are apt to establish the following principles which (in a form which I have somewhat recast) were accepted as common ground between the parties. (i) It was the duty of Mr Wilding to act in mitigation of his loss as a reasonable man unaffected by the hope of compensation from BT as his former employer; (ii) the onus was on BT as the wrongdoer to show that Mr Wilding had failed in his duty to mitigate his loss by unreasonably refusing the offer of re-employment; (iii) the test of unreasonableness is an objective one based on the totality of the evidence; (iv) in applying that test, the circumstances in which the offer was made and refused, the attitude of BT, the way in which Mr Wilding had been treated and all the surrounding circumstances should be taken into account; and (v) the court or tribunal deciding the issue must not be too stringent in its expectations of the injured party. I would add under (iv) that the circumstances to be taken into account included the state of mind of Mr Wilding.”

Although that summary is expressed by reference to the facts before the Court of Appeal, it is nevertheless an authoritative statement of principle as to the proper approach. Sedley LJ delivered a short judgment valuably clarifying that the essential question is not whether it was reasonable for the employer to make the offer in question but whether it was unreasonable for the employee to refuse it. At paragraph 55 (p. 1100 A-B) he said:

“This is a real distinction. It reflects the fact that if there is more than one reasonable response open to the wronged party, the wrongdoer has no right to determine his choice; it is where and only where the wrongdoer can show affirmatively that the other party has acted unreasonably in relation to his duty to mitigate that the defence will succeed.”

That point, though, as we say, important and valuable, is not in any way inconsistent with the overall summary given by Potter LJ.

14. Ground 1 in the Amended Notice of Appeal begins as follows:

“The Tribunal failed to identify the correct legal test and/or apply it to the material facts and/or consider or give sufficient weight to the relevant factor that where the offer of alternative employment comes from the wrongdoing employer itself, a court is likely to take a relatively relaxed view in favour of the employee as to what reasonableness requires […].”

It then goes on to refer to two well‑known authorities on mitigation, Shindler v Northern Raincoat Co Ltd [1960] 1 WLR 1038 and Fyfe v Scientific Furnishings Ltd [1989] ICR 648.

15. We can deal with this ground shortly. We do not believe that the Tribunal failed to identify the correct legal test. Paragraph 58 of the Reasons appropriately summarises the principles appearing from Wilding. Mr Sethi conceded (albeit in rather ungenerous terms) that the Tribunal “did not make a bad job” in that paragraph. We would say more straightforwardly that it correctly stated the relevant law. Once a Tribunal has correctly stated the relevant law there is a heavy burden on an Appellant to show that it did not apply it. We can see no sign that the Tribunal lost sight of its own self‑direction when applying the law to the facts of the present case. As to the allegation that the Tribunal failed to “consider or give sufficient weight to” the factor specified, such a formulation is very often no more than saying that the Appellant disagrees with the assessment made by the Tribunal. In this case it seems to us clear that the Tribunal did consider and give appropriate weight to the fact that the offer of “alternative employment” came from the Army itself.

16. Ground 2 relies on the particular point made by Sedley LJ in Wilding to which we have referred above and claims that the Tribunal “failed to identify” the legal test as there stated. We cannot agree. We see no sign that the Tribunal was not aware of the distinction illuminated by Sedley LJ. It found explicitly not simply that the offer from the MoD was reasonable or that it might have been reasonable for the Appellant to accept it but, in terms, that her refusal of it was unreasonable. At paragraph 58 of the Reasons it said expressly that it appreciated that more than one response to an offer might be reasonable.

17. Ground 3 concerns the reliability of the offer that the Appellant would be able to remain at Blandford for five years. The essential point made is that there was insufficient difference between the oral offer of 21 September, which the Tribunal held that it was reasonable for the Appellant to refuse, and the written offer of 17 October, in respect of which it came to the opposite conclusion. However, in our judgment the Tribunal’s reasons for distinguishing between the two offers are unimpeachable. No doubt it remained the position that as a matter of strict military law the Appellant could in principle be deployed away from Blandford even within that five‑year period and even though the post was described as “non‑deployable”; but the Tribunal believed that it had been made sufficiently clear that that was in practice a very remote contingency and that the offer and the explanation of the steps that had been taken to ensure that it was secure should have given her sufficient assurance about her future. That was a matter for the assessment of the Tribunal as the judge of fact. Mr Sethi’s submission has to be that that assessment was perverse. We cannot accept that submission.

18. Mr Sethi made two subsidiary points under this heading, with which we can deal very briefly. First, he drew attention to the Tribunal’s reference to Major Grice having “apparent authority”. His submission was, as we understand it, that apparent authority is not enough: that feeds back into the question as to the formal position as a matter of military law, i.e. that whatever had been said might be subsequently over-ridden. But it is clear that by referring to Major Grice’s “apparent” authority the Tribunal was merely making the straightforward point that the Appellant should have regarded him as someone who was in a position to give the assurances that he was giving. Secondly, Mr Sethi picked up on the phrase used by the Tribunal in paragraph 63 “as Major Laycock has now told us” and suggested that the Tribunal was relying on facts that were known to it as a result of the evidence called but could not reasonably have been known to the Appellant. That, however, ignores the rest of the paragraph: the Tribunal clearly says that “from the terms of the letter a reasonable person in her position would have realised” that it was very unlikely that she would be deployed away from Blandford before 2012 in the light of the assurances given.

19. Ground 4 refers to the decision of this Tribunal in Cambridge and District Co‑Operative Society Ltd v Ruse [1993] IRLR 156, in which it was held that it was possible for an offer of alternative employment, made for the purpose of the redundancy payment provisions, that was objectively “suitable” nevertheless to be reasonably refused on the grounds of the employee’s perception of the status of the new job. We cannot see how that decision undermines any aspects of the Tribunal’s reasoning.

20. Ground 5 reads as follows:

“The Tribunal erred in law and/or perversely concluded at Reasons [63] that it was a mistake for the Claimant not to test whether or not she would in fact be deployed by accepting the Blandford offer and ‘then see what happened’ where the Tribunal had already found that ‘She was aware that there was no guarantee that she would not be deployed before 2012’ [emphasis added by Mr Sethi] albeit from the terms of the letter a reasonable person in her position would have realised that it was very unlikely.”

We can only say that we see no perversity in the Tribunal’s conclusion.

21. Ground 6 relies on the well‑known principle, generally referred to as stated in Pilkington v Wood [1953] Ch 770, that it will not generally be unreasonable for the victim of a wrong to refuse to seek to mitigate his or her loss by embarking on contested litigation. That is of course unexceptionable, but it is not what the Tribunal was suggesting that the Appellant should do here. Mr Sethi’s submission was based on the observation at the end of paragraph 63 of the Reasons, to which we have already referred in connection with ground 5, and to the point made that if the Appellant found herself deployed in breach of the assurances (or, possibly, at the end of the five‑year period) she would be able to vindicate her rights by bringing proceedings. That observation is not in any way analogous with a case of the Pilkington type; neither the MoD nor the Tribunal was suggesting that the Appellant mitigate her immediate loss by embarking on a course of litigation. That, however, may not by itself be the real point. If the offer had indeed meant that the Appellant would have to work under the very practices that she was litigating to establish were unlawfully discriminatory, it would no doubt not have been reasonable to require her to do so. But the whole point of the MoD’s offer, and its effect, as the Tribunal found, was that she would not be affected by those practices. The Tribunal’s reference to further litigation was only to the possibility that, if the same situation did arise in the future, then it would remain open to her to bring proceedings to vindicate her rights. We see nothing wrong in the Tribunal regarding the relevant risks - one being the very small risk that she might have to take proceedings in the course of the five‑year period in question, the other a wholly unpredictable risk that she might have to do so at the end of the five years - as affording no good reason for refusing the offer made.

22. Ground 7 reads as follows:

“The Tribunal erred in law and/or perversely did not take any or any sufficient account of the fact found at Reasons [34] that at the time of deciding to refuse the Blandford offer the Claimant was engaged in pending litigation against the Respondent (Shindler above).”

Shindler lays down no general rule. In fact, in Wilding itself a finding of failure to mitigate was upheld by the Court of Appeal, notwithstanding that the claimant remained in litigation against his employer.

23. Ground 8 was abandoned by Mr Sethi.

24. Ground 9 complains that the Tribunal gave insufficient reasons for rejecting the Appellant’s evidence that two other factors had entered her decision‑making - one, that she did not have time to consider the offer properly, and the other that she was so advanced in her plans to leave the Army that she could not change her mind. The reference is to paragraph 66. We do not agree that the Tribunal’s reasoning is insufficient. The amount of detail into which it is necessary to go is affected by the weight placed on the points in question by the parties and also by their merits. So far as the former is concerned, it appears from paragraph 66 that the factors in question were ones volunteered by the Appellant at different times in the course of her oral evidence. We do not in fact have any note of what the Appellant’s formal submissions were: she put nothing in writing and did not apparently submit a written witness statement. We should make it clear that we do not say that by way of criticism; but the Tribunal was evidently faced by a situation in which she came up with a number of reasons why she had refused the offer. It plainly regarded the principal one as being that which it considered at paragraphs 59‑65, which was, after all, the reasons she had given in writing at the time. It is not surprising that it did not feel it necessary to deal in detail with these secondary reasons volunteered orally. In any event they seem to us, with all respect to her, to be patently not good reasons. There is no suggestion that she was put under particular time pressure to consider the offer. It was first made to her orally on 21 September; it was repeated to her more fully on 17 October. She took a fortnight before she responded; as the Tribunal pointed out, she had access to legal advice at the time.

25. Ground 10 focuses on paragraph 67 of the Reasons. Mr Sethi makes the point that the Appellant’s love of the Army is not said to have outweighed the feeling of distrust that had been engendered, justifiably as the Tribunal found, by the treatment that she had undergone, and that in any event it cannot in fact have done so since, after all, she decided to refuse the offer. We agree that this paragraph is not perfectly worded, but it is nevertheless clear enough what the Tribunal meant. There are indeed cases where there has been a course of directly discriminatory conduct which has caused such upset that it is not fair to expect the employee to make a wholly rational analysis of an offer of re‑engagement from the former employer. But this, the Tribunal believed, was not a case of that kind. The Appellant had, it judged, not been so disenchanted with the Army that she could not contemplate resuming her career, and she was capable of making a rational assessment of the offer made to her. The Tribunal was also making the related point that her feeling of distrust did not in fact play a substantial part in her decision. Those were findings of fact that were entirely open to it. Mr Sethi submitted that the findings were based on reading too much into the Appellant’s expression of willingness, at the time that the original liability hearing was postponed, to consider proposals whereby her service could continue: see para. 7 above. He submitted that she was in practice bound to consider any such offers, if only to protect her position as to mitigation. We do not see why the Tribunal was not entitled to take into account what the Appellant said in terms; but in any event it expressly relied not only on those letters but on her evidence before it, in which it is clear that she emphasised how much she enjoyed the Army and had hoped to spend a full career in it. The Tribunal could also, it seems to us, have referred to the terms in which she in fact refused the two offers made to her.

26. We therefore dismiss the appeal against the finding that the Appellant failed to mitigate her loss. The truth is that the question whether her refusal to accept the offers made to her constituted an unreasonable failure to mitigate was quintessentially a question of fact for the assessment of the Tribunal, applying well‑established principles. The Tribunal directed itself correctly and considered the points made by the Appellant fairly and conscientiously. It is not for this Tribunal to second‑guess its decision.

(B) CONGENIAL EMPLOYMENT

27. At paragraph 76 of the Reasons the Tribunal recognised that by leaving the Army the Appellant had lost an employment, or way of life, that she had, but for the problems that had arisen in her last year, very much enjoyed; but it held that it could not include in its award for injury to feelings any element reflecting “loss of congenial employment” because she had had the chance to stay in the Army and had, on the findings that it had already made, unreasonably refused it. That conclusion is challenged at ground 11 in the Amended Notice of Appeal, but Mr Sethi correctly acknowledged that it effectively depended on his earlier grounds of appeal: once we have held, as we have, that the Tribunal was entitled to find that the Appellant had unreasonably failed to mitigate her loss, its reasoning on this issue is unimpeachable.

(C) AGGRAVATED DAMAGES

28. As we have already noted, the Tribunal declined to make an award of aggravated damages. At paragraph 78 of the Reasons it said simply this:

“Although the Claimant has sought aggravated damages there is nothing in this case which would lead us to make an additional award of that type.”

29. At ground 12 of the Amended Notice of Appeal it is submitted that the Tribunal’s conclusion in this regard was an error of law, in that its own findings about the way in which she was treated, set out in the earlier sections of the Reasons, necessarily involved a finding that she had been treated, in the usual formulation, in a “high‑handed, malicious or oppressive manner” such that an award of aggravated damages ought to be made. There may be room for argument about whether and in what sense “aggravated damages” are indeed a separate head from “injury to feelings”, requiring always to be dealt with by way of a distinct award; but we need not go into that question here. Even if aggravated damages are in principle separate or separable from an award for “ordinary” injury to feelings, the decision of where the latter stops and aggravated damages start is a matter of judgment and evaluation: there can be no bright line. There will be cases where a tribunal takes into account in its award for injury to feelings elements that another tribunal might have compensated separately by way of an award of aggravated damages. That does not matter as long as the elements in question are properly taken into account under one head or the other. It seems to us that all the factors on which Mr Sethi sought to rely – which, as we have already said, derived from the Tribunal’s own express findings – were taken into account in its award of £15,000. Even if some of them could have been considered separately by way of an award of aggravated damages, none of them, it seems to us, had to be; nor, which is what really matters, does an award of £15,000 seem to us to be outside the bracket of possible awards for the suffering that the Appellant unquestionably underwent. Mr Sethi sought to rely on the decision of the Court of Appeal in Scott v Commissioners of Inland Revenue [2004] ICR 1410; but that case was concerned only with the specific question of whether the guidelines given in the very well‑known decision of Vento v Chief Constable of West Yorkshire Police (no. 2) [2003] ICR 318 did or did not cover cases where it was appropriate to make an award of aggravated damages. That does not appear to us to have any bearing on the criticism made by the Appellant in the present case. We repeat that none of the Tribunal’s findings seem to us to have been such as necessarily to compel the making of an award under the separate heading of aggravated damages or in any event a larger award than was in fact made.

CONCLUSION

30. We therefore dismiss the appeal. It follows that the issues raised by the Appellant and by the MoD in relation to the Tribunal’s alternative findings do not arise.

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Debique v Ministry Of Defence (Sex Discrimination : Other losses) [2011] UKEAT 0075_11_1509 (15 September 2011) URL: http://www.bailii.org/uk/cases/UKEAT/2011/0075_11_1509.html Cite as: [2011] UKEAT 75_11_1509, [2011] UKEAT 0075_11_1509

United Kingdom Employment Appeal Tribunal