Evans v Barclays Bank Plc

Factual and Procedural Background

This case concerns the assessment of pension loss following a claim of constructive unfair dismissal. The Claimant appealed an Employment Tribunal judgment, which had found in his favour and awarded compensation including an element for pension loss. The Tribunal had assessed the loss relating to the Claimant's final salary pension scheme at a previous employer, Company A, and compared it to the pension scheme at the new employer, Company B, which was a defined contribution scheme. The appeal specifically challenged the valuation of pension loss. Procedurally, directions were given for a preliminary hearing and written submissions were ordered from the Respondent. The Employment Tribunal’s decision was made after a hearing lasting five days, with reasons registered in December 2008.

Legal Issues Presented

1. How should pension loss be valued when a Claimant loses a final salary pension scheme due to unfair dismissal and subsequently participates in a defined contribution pension scheme?
2. What is the proper approach for Employment Tribunals in assessing compensatory awards under section 123 of the Employment Rights Act 1996, specifically relating to pension loss?
3. Whether the Employment Tribunal erred in procedure or principle in its handling of Counsel’s submissions and in the valuation methodology applied.

Arguments of the Parties

Appellant's Arguments

• The Claimant argued that the pension entitlement under the new employer’s defined contribution scheme should not be offset against the loss of the final salary pension from the previous employer.
• The Claimant relied on published guidelines stating that money purchase scheme rights should not be taken into account against pension loss but only, if at all, against loss of earnings.
• The Claimant contended that, in the absence of actuarial evidence from the Respondent regarding the value of the new pension scheme, the full amount of pension loss should be awarded without deduction.
• The Claimant raised procedural complaints about how the Tribunal received submissions and the adequacy of reasons provided.

Respondent's Arguments

• The Respondent submitted written arguments opposing the Claimant’s approach and supported the use of actuarial tables (Ogden Tables) to value pension loss.
• The Respondent argued that the Tribunal was entitled to make a best estimate of pension loss in the absence of precise actuarial evidence, treating the new employer’s pension contributions as a stream of income.
• The Respondent contended that the Tribunal’s approach was consistent with legal principles and that the Claimant bore the burden of proving loss.
• The Respondent maintained that the Tribunal’s refusal to grant a review or corrections was proper and that the procedural handling was fair.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reaffirming the statutory framework under section 123 of the Employment Rights Act 1996, which requires the tribunal to award compensation that is just and equitable having regard to the loss caused by dismissal. The court emphasized the tribunal’s discretion and the limited scope for appellate interference unless there is an error of law or a manifestly unreasonable award.

On the substantive issue of pension loss valuation, the court analyzed the Employment Tribunal’s approach of treating the new employer’s pension contributions as a stream of income and using the Ogden Tables to calculate present values. The court found this approach reasonable and justified given the absence of precise actuarial evidence and the inherent uncertainties in projecting investment returns.

The court rejected the Claimant’s argument that the new pension scheme should be disregarded entirely and that the Respondent was obliged to provide actuarial evidence. Instead, it held that the Tribunal was entitled to make a best estimate to achieve justice, consistent with established case law recognizing that assessment of forward loss involves speculation.

Procedurally, the court found no unfairness or disadvantage to the Claimant in the handling of Counsel’s submissions or in the Tribunal’s reasons. It approved the Tribunal’s refusal to review or correct its decision under the slip rule, noting that this followed proper procedure as outlined in precedent.

Overall, the court concluded that the Tribunal’s arithmetic exercise was straightforward, principled, and within the range of reasonable outcomes.

Holding and Implications

The appeal is DISMISSED.

The court upheld the Employment Tribunal’s valuation of pension loss and its procedural handling of submissions and reasons. The decision confirms the discretion of Employment Tribunals in assessing compensatory awards for pension loss, particularly where actuarial precision is unavailable, and endorses the use of the Ogden Tables as a reasonable tool for valuation. No new legal precedent was established; the ruling reinforces existing principles limiting appellate interference to clear errors of law or manifest perversity. The direct effect is that the Claimant’s pension loss award stands as determined by the Employment Tribunal.