Bentwood Bros (Manchester) Ltd v Shepherd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE CARNWATH,MR JUSTICE BLACKBURNE |
| Judgment Date | 27 February 2003 |
| Neutral Citation | [2003] EWCA Civ 380,[2002] EWCA Civ 1523 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A1/2002/1795 |
| Date | 27 February 2003 |
[2002] EWCA Civ 1523
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
(RENEWAL IN PART)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Peter Gibson
A1/2002/1795
MR R WHITE (instructed by Wadesons of London) appeared on behalf of the Applicant
The Respondent was not represented and did not attend
On 6 August 2002 the Employment Appeal Tribunal dismissed the appeal of the employer, Bentwood Bros (Manufacturers) Ltd, from the decision promulgated on 9 February 2001 of an Employment Tribunal sitting in Liverpool. That decision was the tribunal's award at a remedies hearing, the tribunal having earlier found at the liability hearing that the employee, Miss Shepherd, was unlawfully selected for redundancy because she was pregnant. The tribunal awarded the employee £190,863.21 in compensation plus £7,157.38 interest.
The employer sought permission to appeal from this court on a number of grounds which alleged error of law in respect of specific items of compensation and interest awarded. The application came before me on paper when I granted permission to appeal on those grounds though I fear that an error in the form recording the reasons for my decision has crept in. Permission to appeal should be limited to paragraphs 3 to 6, not 3 to 8 of the document headed "Grounds of appeal". Paragraphs 7 and 8 refer to alleged errors by the tribunal but the employee accepts those errors were made and there is no need for an appeal to go forward in respect of those errors. Those errors are however relied on, among other matters, for a further ground of appeal, that of bias, on the part of the tribunal. I refused permission to appeal on that ground.
Mr Robin White for the employer now renews its application for permission to appeal on that ground. Mr White submits that apparent bias can be established from the cumulative effect of two features of the tribunal's decision.
He relies first on the fact, as he alleges, that there have been numerous and serious failures of law by the tribunal. Those errors fall into two categories. One is the four claimed errors of law for which I have given permission to appeal. I assume on this application that Mr White may well succeed on those grounds. They are: (1) the finding by the tribunal of a loss of pension for 10 years, to be contrasted with the award of loss of earnings for only two-and-half years; (2) a discount of only 5 per cent for accelerated payment; (3) in paragraph 6 of the decision the tribunal appears to have made two awards of compensation, differing by £1,100; insofar as the tribunal was awarding the higher sum it appears to have included what is covered by the basic award and that had been, in effect, paid by the redundancy payment which the employer made; (4) the tribunal has awarded interest on the gross compensation although it acknowledged that tax and national insurance contributions fell to be deducted from the compensation. The second category of errors consist of three errors which, it is now common ground between the employer and employee, were made by the tribunal: one was that the award of interest included an award of interest on future sums. The other two errors appear to be arithmetical errors of which one was in favour of the employee and the other, in a slightly smaller amount, was in favour of the employer.
The second feature relied on by Mr White is the fact that two other awards were close to the upper end of the permissible range. One is the amount for future loss of earnings; that is the largest component of the award. The other is the award for injury to feelings, the award of £10,000 being more than three times the £3,000 which had been claimed by the employee. But it is not suggested that these two awards contain errors of law.
Mr White submits that taking those two features together a fair-minded and informed observer would conclude that there was a real possibility of bias in this case. That is a bold submission. The tribunal has not accepted all that the employee claimed, either at the remedies hearing or at the earlier liability hearing. It is not suggested that any member of the tribunal had any interest in the outcome of the proceedings, nor that the tribunal's overt conduct showed any bias. One of the arithmetical errors, as I have already noted, is in the employer's favour. It is accepted that the award for loss of earnings and for injury to feelings in themselves cannot be impugned as erroneous in law. Mr White has not put before me any authority which supports the employer's case that in circumstances such as these the court would infer the real possibility of bias which is asserted.
An allegation of bias against a tribunal exercising judicial or quasi-judicial functions is an extremely serious charge to make. As with all serious allegations the court would require clear evidence if it is to be persuaded that the tribunal have failed in so fundamental a duty as that of even-handed impartiality. The possibility of straightforward error without bias in respect of the errors that are relied on is manifest.
In my judgment, the errors in this case even when taken with the other matters relied on by Mr White do not establish, nor, in my view, come near to establishing, the possibility of bias. Some clearer evidence would have to be produced in order to establish that there is a real prospect of success on this ground.
I fear therefore that in the absence of any other compelling reason for this appeal to go ahead I must dismiss this application.
Order: Application dismissed
[2003] EWCA Civ 380
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
AN EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE LEVY QC)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Peter Gibson
Lord Justice Carnwath
Mr Justice Blackburne
A1/2002/1795
MR R WHITE (instructed by Wadesons) appeared on behalf of the Appellant.
MR C JEANS QC (instructed by Denton Wilde Sapte) appeared on behalf of the Respondent.
Thursday, 27th February 2003
The respondent, Mrs Barbara Shepherd, was dismissed by her employer, the appellant, Bentwood Brothers Manufacturers Ltd ("Bentwood"), on 8th December 1999 on the ground of redundancy. Bentwood is a member of a group of companies which design and manufacture clothing, including clothing for Marks & Spencer. She had been employed as a sales executive at one of its factories for nearly six years at a basic annual salary of £44,125 and was a member of Bentwood's pension scheme. As the Employment Tribunal was to find, she was in an important management position and was a high performer. When dismissed she was pregnant, her child being born on 17th December 1999. She presented an originating application to an Employment Tribunal on 6th March 2000. She complained of unfair dismissal and sex discrimination. After a hearing before the Tribunal at Liverpool to determine the issue of liability, the Tribunal by a decision sent to the parties on 7th November 2000 found that she was selected for redundancy because she was pregnant. Although Bentwood purported to undertake a process of applying selection criteria, the criteria were found to be intrinsically defective and unfairly applied; the exercise was not undertaken in good faith but was cobbled together in an attempt to provide an apparent justification for dismissing her. The Tribunal accordingly found that Bentwood had been guilty of unfair dismissal and sex discrimination. There has been no appeal from that decision.
There was a remedies hearing on 13th December 2000. She was then only 35 years old. The Tribunal awarded her £190,863.21 in compensation plus £7,157.38 interest. Among the items making up the compensation were a sum of a little over £100,000 for two and a half years' future loss of earnings and a sum of £62,969.10 for 10 years' future pension loss. For the accelerated payment the Tribunal deducted 5% from the total for future loss of £165,798.76, that is to say £8,289.95. The Tribunal also awarded interest on gross compensation, although they had said that tax and National Insurance Contributions were to be deducted from the gross sum.
Bentwood appealed against that award on a number of grounds including bias. At the preliminary hearing of the appeal one of the grounds was dismissed by the Employment Appeal Tribunal, His Honour Judge Altman presiding, but the appeal on the other grounds of appeal was allowed to go to a full hearing. At that hearing the Employment Appeal Tribunal, His Honour Judge Levy QC presiding, noted that it was agreed that there had been an arithmetical error in the figures. The award should have been of £190,663.21 compensation and £809.06 interest; but subject to that correction the appeal was dismissed.
Bentwood then sought permission to appeal to this court. On paper I granted permission on some of the intended grounds of appeal but refused permission on others. Bentwood reviewed its application before me in court, but I refused the application on 7th October 2002.
This appeal is therefore confined to three points:
(1) Was the Tribunal perverse in awarding future pension loss for...
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...3 WLR 322; [2004] 3 All ER 991, HL(E) The following additional cases were cited in argument: Bentwood Bros (Manchester) Ltd v Shepherd [2003] EWCA Civ 380; [2003] ICR 1000, Dunnachie v Kingston upon Hull City Council [2004] UKHL 36; [2004] ICR 1052; [2005] 1 AC 226; [2004] 3 WLR 310; [2004]......
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