Appeal No. EAT/0394/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 May 2002

Before
THE HONOURABLE JUDGE D M LEVY QC
MR J R CROSBY
MR P M SMITH

BENTWOOD BROS (MANUFACTURERS) LTD	APPELLANT

MS B SHEPHERD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ROBIN WHITE
(Of Counsel)
Instructed by:
First Assist Group Ltd
Marshall’s Court
Marshall’s Road
Sutton
Surrey
SM1 4DU	
For the Respondent	MR CHRISTOPHER JEANS
(One of Her Majesty’s Counsel)
Instructed by:
Messrs Richmonds
Solicitors
Richmonds House
White Rose Way
Doncaster
DN4 5JH	

JUDGE D M LEVY QC

1.	This an appeal by an employer Brentwood Bros (Manchester) Ltd, (“the Appellant”) against the amount it was ordered to pay to the Applicant Ms B E Shepherd, the (“Respondent”) following a hearing of her claim that she was dismissed for a reason relating to pregnancy, was unlawfully discriminated against on the ground of sex contrary to sections of the Sex Discrimination Act 1975 and that she was selected for redundancy because she was pregnant.  Other claims she made failed.

2.	The hearing was before an experienced Tribunal in Liverpool on 9 June, and 4 September 2000 Members Consiun on 15 September 2000 in Chambers.  A lengthy decision was promulgated on 6 November 2000.  The Remedy Hearing from which this appeal comes was heard on 13 December 2000, some five weeks after the promulgation of the original hearing.  That decision was promulgated to the parties on 9 February 2001.  There was an appeal against the remedy decision on 20 March 2001.  The matter came before another panel of this Tribunal on 25 June 2001 on a Preliminary Hearing and the matter was allowed to proceed to a full hearing.  Affidavits were ordered because an allegation of bias had been raised.  There was an amended Notice of Appeal on 28 June 2001 and Affidavits after that were sworn by the Appellant.  The Respondent answered that on 21 September 2001.

3.	In issue is the gross sum which was awarded to the Respondent namely the sum of £190,863.21 in compensation, plus £7,157.38 in interest.  Counsel appearing for the parties agree that there was an error in arithmetic in the sums which were awarded and if the appeal is not otherwise successful it is common ground that the awards should have respectively totalled £190,663.21 and the compensation £809.06.  The judgment below should be reflected to substitute the agreed figures.

4.	At both hearings before the Employment Tribunal the Appellant was represented by Mr Colin Hawgood, an Employment Consultant.  He, it was who swore the Affidavit on the issue of bias and in paragraph 2 of that Affidavit he said:

“I can confirm that at both liability and the remedy hearings before the Employment Tribunal there was no overt conduct by the Tribunal which led me to believe that the Tribunal was bias against the Appellant.”

5.	That, in our judgment is an important Affidavit given the submissions which have been made on behalf of the Appellant.  Mr White who appeared on the Preliminary Hearing submits that the bricks which he identifies paragraph 11 of his Skeleton Argument show that the quantum award made collapses under his attack.  He submits, and this is the primary point of his appeal that the allegation of perversity is one that stands as clear having regard to the decision of the panel headed by Mummery J (then President of the EAT) in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 which he says flies in the face of properly informed logic.  The reason for that is found in the passage in paragraph 4 of the decision where the Tribunal in the Extended Reasons said this:

“It therefore considered that £10,000 representing less than three months’ gross salary, was an appropriate sum for injury to feelings.  The Tribunal also awarded the applicant 2½ years’ future loss.  It is noted that her present loss is £848.56p per week gross.  It is also noted that the Applicant had made real efforts to obtain work and had been unsuccessful, except for a temporary contract at nowhere near the salary she had earned with the respondent.  Therefore (it or we should be there) considered 2½ years’ future loss to be a realistic assessment of her loss.  (the next sentence should read) The Tribunal also decided to grant her ten years’ future pension loss, because the Tribuanal believed it unlikely that the applicant would find pensionable employment again. It awarded her the loss of enhanced pension rights set out in Mr Shore’s list of schedule of loss, agreed by Mr Hawgood.  It has deducted an amount of 5% for accelerated payment”

6.	Mr White submitted that if the Tribunal awards 2½ years future loss, how can it be possibly be said the Respondent would never find pensionable employment again.  Mr Jeans, on behalf of the Respondent, submitted that sentence was a finding of fact by the Tribunal who had the case at its fingertips and it did not need any qualification.  Mr White by contrast said it showed perversity.  

7.	In our judgment where the word ‘again’ is found as underlined, it has to be read in the context of the case and does need some explanation.  The position was this: the Respondent was a highly paid lady in a specialist position where the loss of her job in the way it was lost occurred because of her pregnancy.  She was made redundant in an exercise which the Tribunal found to be a sham.  It was unlikely that we would be able to get a job in that field in the future with a pension of the sort which she had been getting from the Appellant.  That appears to us from reading the whole of the judgment and it is in our judgment a pity that the word ‘again’ was used without any qualification.  The decision itself with some explanation can be understood.  In our judgment, the point of a perversity urged on us as compelling by Mr White is answered on proper analysis.

8.	As to error of bias made by the Appellant, the approach of an appeal count when this issue is raised has been restated by the House of Lords in Porter v Magill [2002] 2WLR 37.  In paragraph 102 of his speech, with which the other learned Lords agreed.  Lord Hope of Craighead approved the approach which the Master of the Rolls had set out in the Medicaments and Related Classes of Goods (No 2) [2001] IWCR 700.

“A Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased.  It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being same, that the Tribunal was biased.”

9.	Given the very proper Affidavit of the Consultant who appeared below for the Appellant, we are satisfied that there was no bias below.  Mr Jeans submitted there could possibly be cases where there would be bias which was not overt but this is not one of them.  We agree, Mr White has submitted that there was a lack of logic in the approach to pension loss.  For reasons we have given we do not agree with him.  He submits that there is an error in the calculation of the pension award, that there has been inappropriate treatment of interest, and that there has been inappropriately low discount for early receipt.  In our judgment the sum awarded for interest was wrong in that interest on future sums was incorrectly calculated.  However at the end of the day, given the correction on interest which has emerged from the agreement of Counsel which has reduced the interest from the sum in the award to £809.06, we think it would be disproportionate for there to be a further enquiry into a further reduction.

10.	As to the other matters raised, again we think that there is nothing in the complaints made by Mr White in the context of the judgment as a whole.  As to the award for injury to feelings, we have been referred to the decision of this Court in a panel headed by Judge Clark the ICTS (UK) Ltd v Tchoula [2000] IRLR 643 and our attention was particularly drawn to the analysis at page 648 of the decision where the high category and the low category were considered.  It was submitted by Mr White that too high an award had been made.  In the context of this case, in our judgment although the Tribunal awarded more for injury to feeling then the solicitor appearing for the Respondent appeared to have sought, given the context of the findings made in the merits hearing and given the treatment which the Tribunal found was meted out to the Respondent, the award for injury to feelings is one which the Tribunal was entitled to reach and one with which we are not entitled to interfere.

11.	As to the criticism of length of the award chosen for future loss, in the context of the case, the person chosen was one which the Tribunal could properly have determined and therefore there shows no error.  For the reasons given in the Judgment of the panel hearing the ex parte application of this appeal gave, many cases at that stage to show an arguable case to go forward, which ultimately fails at a full hearing of an Appellant’s appeal.  The figure which was awarded to the Respondent appears high, but, nonetheless, given the particular circumstances of this case, it is, one which the Tribunal was entitled to reach subject to the agreed corrections.  We have been reminded by Mr Jeans that this Tribunal is usually unwilling to interfere with quantum awards simply because there are small errors within it which the Tribunal has made.  Given the fact that the Tribunals are very busy Tribunals, not every element of a judgment can be put under a microscope.  The unusually large element in the award to the Respondent made for loss of pensionable rights as we have held, is explicable.  If we are right in our holding that this is proper, the rest of the appeal, in our judgment falls away.  In the circumstances subject to the agreed adjustment we dismiss it.