R v Civil Service Appeal Board, ex parte Cunningham
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE McCOWAN,LORD JUSTICE LEGGATT |
| Judgment Date | 04 March 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0304-5 |
| Docket Number | 91/0312 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 March 1991 |
[1991] EWCA Civ J0304-5
The Master of the Rolls
(Lord Donaldson)
Lord Justice Mccowan
Lord Justice Leggatt
91/0312
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE OTTON)
Royal Courts of Justice
MR JOHN LAWS and MR ROBERT JAY, instructed by The Treasury Solicitor, appeared for the Appellant (Respondent).
MR DAVID PANNICK, instructed by Messrs Mishcon de Reya, appeared for the Respondent (Applicant).
The Background
On 12th February 1988 Mr Cunningham was given notice of dismissal from the prison service following upon an alleged assault on a prisoner. Although the incident was investigated by the police, Mr Cunningham was not prosecuted. He had been in the prison service for 23 years, was aged 4 5 and was the physical education officer at one of H.M. Detention Centres. Mr Cunningham appealed to the Civil Service Appeal Board ("the Board") which on 8th November 1988 ruled that his dismissal had been unfair and recommended that he be reinstated.
The Home Office, as it was entitled to do, declined to accept that recommendation. On or about 27th January 1989 the Board assessed the compensation due to Mr Cunningham at £6,500. Mr Cunningham had been in receipt of his full pay until 4th January 1989, but thereafter the only payment by the Home Office was £6,500 on 10th February 1989.
Mr Cunningham was understandably aggrieved at this award. His pay as a prison officer was at the rate of £16,900 per annum. Following the refusal to reinstate him, he had to seek other employment and it appears that the best which he has been able to achieve is a part time post with a local authority at a salary of £8,3 00 per annum. We were not told for how long he was unemployed, but if these facts are correct, even after obtaining substituted employment, he has been suffering a continuing loss at the rate of £8,600 per annum or £165 per week, quite apart from any loss of pension rights. Most people in Crown employment faced with such a situation could complain to an industrial tribunal under the Employment Protection (Consolidation) Act 1978 and seek compensation (see section 138). Unfortunately Mr Cunningham is in a select category of employment which is regarded as "police service" and is excluded from the benefit of the relevant parts of the Act (see section 146(2) and (3)).
Mr Cunningham's dissatisfaction has been in no way assuaged by calculations which have been made by his legal advisers as to what an industrial tribunal would be likely to have awarded by way of compensation. They advise him that he would have been entitled to a basic award under section 73 calculated at the rate of one and a half weeks' pay in respect of his last four years of service, during which he was over the age of 41, subject to a maximum of £164 per week and at the rate of one week's pay, subject to the same maximum, in respect of the previous 16 years' service, there being a 20 year overall limit. This would have produced £3,608. In addition he would have been entitled to a compensatory award under section 74(1). This at the relevant time was subject to a maximum of £8,500. The basis upon which it is awarded is "such amount as the tribunal considers just and equitable…having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer." Given the difficulty which confronted Mr Cunningham in obtaining other employment, which was probably foreseeable, and the degree of loss which he has in fact suffered consequent upon his unfair dismissal, his advisers not unreasonably calculated that he could have expected a maximum award of £8,500. In considering this advice, it is necessary to have regard to section 74(6) which provides that "where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding" and the similar section which applies to the basic award (section 73(7B)). However, as Mr David Pannick, who has appeared for Mr Cunningham, pointed out, it would be difficult, although perhaps not impossible, to justify a reduction of this order under this head in a case in which the Board had recommended reinstatement. Absent such a reduction the basic and compensatory award would have amounted to £12,108 and accordingly there would have been a reduction of nearly 30%. Finally there is yet another award which he could have claimed, namely, one under section 71(2) which applies where a tribunal has ordered reinstatement and the employer refuses to comply with the order. Such an award is compensatory, but is subject to a minimum of 13 weeks' pay (£2,132) and a maximum of 26 weeks' pay (£4,264) (see section 71(2)(b)(ii)). Aggregating these figures, it is submitted that Mr Cunningham had reasonable grounds for thinking that an industrial tribunal would have awarded him between £14,240 and £16,374 less the £6,500 already paid by the Home Office.
The Application for Judicial Review
In these circumstances it is not surprising that Mr Cunningham should have sought some avenue of redress. There is no right of appeal from the Board's decision and accordingly in March 1989 he applied for, and Roch J. granted him, leave to apply for judicial review. His attack was two-pronged. First he attacked the decision to award him only £6,500 as compensation upon the grounds that it was prima facie irrational and sought an order that it be reconsidered. Second he attacked the refusal by the Board to supply him with any reasons justifying the amount of the award and sought an order that the Board give reasons. On both grounds he sought a declaration that the Board had exceeded its powers and acted unlawfully.
The application for judicial review was heard by Otton J. who on 25th May 1990 declared the decision of the Board to award compensation of £6,500 and its subsequent refusal to supply Mr Cunningham with reasons for the award to be unlawful and ultra vires. In giving reasons for that decision, the learned judge made it clear that he rejected the attack upon the amount of the award per se and rested his judgment upon the failure to give reasons either initially or upon request.
The Appeal and Cross-Appeal
The Board now appeals upon the grounds that it is under no obligation to give any reasons for its award and Mr Cunningham cross-appeals upon the grounds that the award is prima facie irrational. Although in a sense the appeal and cross-appeal are independent of each other, both involve a consideration of the duty of the Board to give reasons initially or, if not then, upon leave to apply for judicial review being granted. These are issues of considerable general public importance in the field of public law and for that reason, and in deference to the excellent arguments with which we were assisted by Mr John Laws, appearing for the Board, and by Mr David Pannick, we took time to consider our decision and have put our judgments into writing.
The Boards Susceptibility To Judicial Review
This was accepted on this appeal. Previously it had been so decided by the Divisional Court in R. v. Civil Service Appeal Board, Ex parte Bruce [1988] I.C.R. 649. There it was held that the Board was a public law body, but in the exercise of its discretion the court declined to give Mr Bruce any relief since he had available to him and was taking advantage of the alternative remedy of applying for compensation to an industrial tribunal. On appeal to this court [1989] I.C.R. 171, the only relevant challenge was to the exercise of that discretion.
The Jurisdiction of the Board
The Board's jurisdiction is derived from the Civil Service Order in Council, 1982, Article 4 of which authorised the promulgation by the Minster for the Civil Service of a Code for Civil Service Pay and Conditions of Service. Paragraph 14 was in these terms:
"14. For the most part, the relationship between the civil servant and the Crown remains one regulated under the prerogative and based on personal appointment. As such, a civil servant does not have a contract of employment enforceable in the courts but rather a letter of appointment, and technically the Crown still retains the right to dismiss a civil servant at pleasure. Recently, however, the legal position of civil servants has been radically changed by the growing trend for legislation to apply to the Civil Service either directly, by the provisions of the Acts themselves or by government assurances that the c/onditions applying to civil servants will not be less favourable than those applying to other employees."
Paragraphs 10120 to 10137 give U.K. based civil servants under notice of dismissal or compulsory premature retirement (other than on medical grounds) a right of appeal to the Board subject to conditions as to minimum length of service and age which are immaterial in the case of Mr Cunningham. The constitution of the Board which hears appeals bears a striking resemblance to that of an industrial tribunal consisting of an independent chairman and two members, one drawn from a panel nominated by the Official Side and one from a panel nominated by the Staff Side. It is provided that "the Appeal Board will operate without undue formality. Its purpose is to decide whether the decision to retire prematurely or to dismiss is fair. If the Board decides that it is not, it may recommend to the head of the employing department either...
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