Appeal No.	 EAT/394/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 June 2001

Before
HIS HONOUR JUDGE J ALTMAN
MR B V FITZGERALD MBE
MR P M SMITH

BENTWOOD BROS (MANCHESTER) LTD	APPELLANT

MS B SHEPHERD	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING 

	APPEARANCES

For the Appellant	MR R M WHITE
(of Counsel)
Instructed by:
Mr M O'Connor
First Assist Group Ltd
Marshall's Court
Marshall's Road
Sutton
Surrey	

JUDGE J ALTMAN

1	This is an appeal against the remedy decision of the Liverpool Employment Tribunal in this case, promulgated on 9 February 2001 after a remedy hearing on 13 December 2000.  This in turn followed a liability decision promulgated on 7 November 2000 following hearings on 9 June and 4 September 2000 and a meeting of the Employment Tribunal in Chambers on 15 September 2000.

2	We should say at the outset that we find that this appeal should be permitted to proceed to a full hearing.

3	The Appellant seeks to challenge a number of aspects of the Employment Tribunal’s remedy decision.

4	Firstly, the Appellant seeks to challenge the award of future financial loss.  The award of 2½ years loss (3½  years from dismissal) is said to be a very long award but that is not challenged per se.  Rather Mr White invites comparison with the award of 10 years loss of pension (11 years from dismissal).  We find that it is arguable that there is a logical inconsistency between the two parts of the award, unexplained on the face of the Employment Tribunal’s decision.  

5	We also find that there is arguably an error of law in the use by the Tribunal of a 5% discount factor for future loss extending over 10 years.  No basis for the use of this figure appears on the face of the Tribunal decision.  In considering this aspect of the appeal, Mr White has referred us to the award of £10,000 made by the Tribunal for injury to feelings.  We do not understand the Appellant to be challenging this aspect of the award directly.  Rather we understand Mr White’s submission to be that such an award, at the upper end of the permissible bracket, is evidence of the Tribunal’s approach in this case.  

6	The Appellant also seeks to appeal the Tribunal’s refusals to make a 25% ‘Polkey’ reduction for the chance that under a fair process the Respondent would have been dismissed in any event.  This matter has its origins in the decision of Marks & Spencer to reduce its requirement for goods to be manufactured in the UK.  This caused the Appellant to decide to close one of its four UK factories.  Each factory had associated with it a senior sales person and one such was the Respondent.  Mr White has helpfully referred us to the passages in the liability decision in which the Tribunal consider the process applied to the Respondent.  The relevant paragraphs are numbers 19, 26 and 27.  We note that the Tribunal found that the selection process was not carried out in good faith, that it was ‘cobbled together’ to justify selection of the Respondent and that she was in fact selected because of her pregnancy.

7	A suggestion that the Respondent would have had a 25% chance of being selected in any event would require affirmative evidence in respect of the candidates for selection.  We note that none was before the Tribunal.  It is not the duty of the Tribunal to go looking for such evidence.  Given their findings of fact on the manner in which the selection process was applied we find that the refusal of the Tribunal to make a Polkey reduction in the award was one which a reasonable Tribunal could have made and consequently we do not find that this ground of appeal raises an arguable ground of appeal.  

8	There seems to us a clearly arguable error in paragraph 6 of the decision in which the Tribunal appeal to have included in the final figure the basic award which they have earlier recorded as having been satisfied by the redundancy payment made by the Appellant.

9	There also seems to us an arguable error of law in the award of interest which the Appellant argues in effect awards interest on tax and national insurance payments which will be made by the employer and in any event only fall to be assessed in the year in which they are in fact made.  Mr White informs us that the treatment of interest in this award departs from the Employment Tribunals’ usual practice in such cases.

10	Mr White has also argued before us that the number of apparent errors in the remedy decision, coupled with the fact that they are all in the Respondent’s favour and also coupled with the nature of the elements of the award within the discretion of the Tribunal render the remedy decision one in which the Appellant cannot have confidence that it was treated properly.  He argues that there is a real danger that some form of bias may have entered the Tribunal’s thinking on remedy or that it may have moved from a compensatory to a punitive approach.  He seeks permission to amend the Notice of Appeal to raise this point and to seek to have the whole remedy decision referred to a freshly constituted Tribunal.  We consider this point arguable and grant the permission he seeks, subject to the usual condition that an amended Notice of Appeal be filed and served within 14 days.  

11	Accordingly we direct that this matter be set down for a full hearing, Category C, half a day.