Bentwood Bros (Manufacturers) Ltd v Shepherd

Serious errors by an employment tribunal do not, without more, establish a real possibility of apparent bias. The court requires clear evidence before inferring that a tribunal exercising judicial or quasi-judicial functions failed in its duty of even-handed impartiality. The possibility of straightforward error without bias is a material explanation for legal and arithmetical mistakes. Even when such errors are considered cumulatively with awards near the upper end of the permissible range, they do not meet the threshold without clearer evidence.

An Employment Tribunal found that Miss Shepherd had been unlawfully selected for redundancy because she was pregnant. At a remedies hearing it awarded compensation and interest. The Employment Appeal Tribunal dismissed the employer’s appeal. The employer renewed its application to the Court of Appeal for permission to appeal on the additional ground that the tribunal appeared biased, relying on alleged legal errors and awards said to be high. The central issue was whether those matters established a real possibility of bias sufficient to give the proposed appeal a real prospect of success.

1. Lord Justice Peter Gibson dismissed the renewed application for permission to appeal on the ground of bias. Permission had already been granted on limited grounds concerning particular compensation and interest issues, but the present application concerned only the refused bias ground.

2. The employer relied on four alleged errors for which permission had been granted, including the treatment of pension loss, the discount for accelerated payment, apparently duplicated compensation, and interest on gross compensation. It also relied on three errors accepted by both parties, including interest on future sums and two arithmetical errors. The tribunal had also made awards for future loss of earnings and injury to feelings that were close to the upper end of the permissible range.

3. An allegation of bias against a tribunal exercising judicial or quasi-judicial functions is an extremely serious charge. Clear evidence is required to show failure in the fundamental duty of even-handed impartiality and to establish a real possibility of bias.

4. The alleged errors, even when taken together with the size of the two awards, did not establish, and came nowhere near establishing, a possibility of bias. Straightforward error without bias was a manifest explanation. No member of the tribunal was alleged to have had an interest in the outcome, and its overt conduct was not said to demonstrate bias. Clearer evidence would have been required to show a real prospect of success on the bias ground. The application was dismissed.

• Court of Appeal (Civil Division): Lord Justice Peter Gibson dismissed the renewed application for permission to appeal on the bias ground: [2002] EWCA Civ 1523.
• Employment Appeal Tribunal: On 6 August 2002, dismissed the employer’s appeal from the Employment Tribunal’s remedies decision.
• Employment Tribunal: Following a liability finding that the employee had been unlawfully selected for redundancy because she was pregnant, awarded £190,863.21 compensation and £7,157.38 interest at the remedies hearing.