A Consent Order Requires Consent Now, Not Consent Then

A draft consent order is one of the least remarkable documents in employment practice: a recital, a figure, a direction vacating the hearing. The respondent's solicitors in Edward v North London NHS Foundation Trust [2026] EAT 116 emailed one to the tribunal on 18 January 2024, three weeks before a remitted remedy hearing. That order was never made. What the tribunal issued instead was a judgment dismissing the claim on a withdrawal that had never happened, which it later revoked; and then, eight months after the draft arrived, a different order in adapted terms which it labelled “by consent”. The claimant had by then told the judge, twice in writing and at both of the hearings she listed, that he did not consent to it.

Everything a tribunal can do with agreed terms comes from one sentence.

That is the consent order power in full. Until 2024 it was rule 64 of the 2013 Rules, in materially the same words, and Edward turns on the older text. It does not reach a party who has changed his mind and said so.

HHJ Auerbach allowed the appeal and quashed the order. The judgment settles three things that practitioners have been answering by assumption for years: that terms agreed in writing engage the rule whenever they were agreed, and not only at a hearing; that s.144 of the Equality Act 2010 is no bar to a consent order even where the underlying settlement would be unenforceable; and that the rule 62 power to make a given order is available only while both parties still want that order, so a party who withdraws consent and says so before the tribunal acts defeats it.

Eight years, no remedy

Mr Edward was dismissed by the Tavistock and Portman NHS Foundation Trust in May 2018 from a band 5 role, the Trust having decided he could not work at that level. In 2020 a tribunal at London Central, EJ Goodman and members, upheld his complaint that the failure to redeploy him to band 4, and his consequent dismissal, was victimisation. Remedy followed in April 2021, cut back to reflect a finding that he had unreasonably failed to mitigate. On appeal DHCJ Gavin Mansfield KC allowed that ground so far as it concerned past loss and remitted it. Mr Edward acted in person throughout, except at that appeal.

The Trust's January 2024 draft raised the award by £14,583.09 to £80,527.09 and added £9,660 for the remitted mitigation issue, in full and final settlement, payable within 28 days of the order being sent to the parties. On 25 January the claimant emailed the tribunal to say he had agreed, “despite it was not what was agreed between the parties in principle”, because he had lost confidence in the panel and thought a further hearing before it a waste of time. The February hearing was vacated. Then nothing happened for three months.

On 7 May 2024 the tribunal wrote asking the parties whether the case had settled. The same day, a legal officer signed and sent out a judgment dismissing the claim upon withdrawal. Mr Edward had withdrawn nothing. Nor had he been paid, because payment under the draft turned on an order that had never been made. On 15 and 16 May he told the Trust and the tribunal that the agreement had not been taken forward, that he was not interested in pursuing it, and that he wanted his remedy hearing.

EJ Goodman revoked the withdrawal judgment, which was right, and listed the matter to decide whether the claim had settled. Two preliminary hearings followed, on 8 July and 2 October 2024, the claimant appearing in person at both to oppose any order. By the second the Trust had paid the January sums, with interest at 8 per cent from February. She held that there was a contract, that nothing suggested Mr Edward had lacked capacity or been misled, and made an order recording the increased award, the payments made and the vacation of the remedy hearing. She labelled paragraph 1 of it “by consent”. Those terms were not the January draft but an adaptation of it [63].

What the rule covers

Read one way, everything in that sentence has to happen at a hearing. Auerbach read “at a hearing” as governing “orally” alone, as if the rule ran “in writing, or orally at a hearing”, so that it catches terms agreed in writing at any point in the life of a claim [35].

Rule 13(2)(b) of the 1993 Rules, rule 15(2)(b) of the 2001 Rules and rule 28(2) of the 2004 Rules each required writing; none confined the power to a hearing. The innovation of 2013 was to add the oral route, not to withdraw the written one [37]. So the practice everybody follows — email the agreed terms in, ask for an order, stay at home — was lawful all along: the tribunal need not convene, or wait for a hearing, to give effect to it.

Section 144 is not the obstacle

A consent order can dispose of a discrimination complaint even though the agreement behind it would not survive s.144 of the Equality Act 2010. The claim ends by judicial act rather than by contract: the tribunal decides that the complaint should go, so there is no contracting out for s.144 to prohibit [49]. Note what the section does and does not do. It does not void the offending term. It makes the term unenforceable by the party in whose favour it operates, leaves the rest of the bargain standing, and says nothing whatever about what a tribunal may order. The January terms in Edward were neither ACAS-assisted nor a qualifying settlement agreement, so the Trust accepted that its full and final settlement clause was unenforceable against Mr Edward. EJ Goodman nonetheless found that there was a contract: nothing in s.144 stood in the way of that.

Getting there took work, because the authorities are thinner than practice assumes. Carter v Reiner Moritz Associates Ltd [1997] ICR 881 accepts that parties may agree subject to an order of the court, but the EAT allowed a cross-appeal on a reading of s.140 of the 1978 Act that Auerbach thought problematic, which leaves the ratio genuinely unclear [39]–[43]. Mayo-Deman v University of Greenwich [2005] IRLR 845 holds that a tribunal need not satisfy itself that agreed terms bind before dismissing a claim, but no consent order was made there and the passage may be obiter [44]–[46]. Times Newspapers Ltd v Fitt [1981] ICR 637 goes furthest, holding that once the tribunal has disposed of the case “the purpose of section 140 is exhausted”; it too turned on another ground [47]–[48]. Auerbach found no binding answer in any of them [50].

What carried the point was the rule. It says the tribunal “may” act “if it thinks fit”, which leaves it free to refuse in a case that troubles it. Had Parliament meant an unenforceable settlement clause to disable the power, it would have said so.

But the consent has to be current

The Trust argued that the power comes from the rule and not from the agreement, so that a past agreement is the trigger and the tribunal's discretion supplies the oversight [52]–[53]. Auerbach rejected that on the language. The rule enables an order in terms which both parties want the tribunal to make; it does not enable one where a party has told the tribunal that it does not consent and does not want the order [55]. To record an order as made “by consent” when the judge knows one side opposes it “does violence to language” [56].

Mr Edward had relied on a passage in Council of Engineering Institutions v Maddison [1977] ICR 30 at 35: “There is nothing to prevent a party from abandoning proceedings: what cannot be done is to compel him to do so, because of an agreement he has made, if he has changed his mind before he does so.” Auerbach declined to treat that as binding, since it may well be obiter, and reached the same place on the words of the rule instead [60]–[61].

One case is expressly left open. Where a party changes their mind but communicates nothing that puts the judge on notice, the order may still be properly made by consent [57]. That reservation matters more than it looks: a tribunal cannot know what it has not been told, so the burden of telling it sits on the party who has changed position.

None of this touches a change of mind that comes after the order. The condition is that consent subsists when the tribunal acts, so once it has acted the complaint is disposed of and the order stands, absent fraud or misrepresentation — the reasoning in Fitt, which Auerbach treated as persuasive rather than binding [48]. Regret after the event belongs to reconsideration or appeal, not to rule 62.

A live complaint leaves the tribunal's hands by one of three routes [58]–[59] — an enforceable settlement agreement, a withdrawal under rule 50, or a consent order under rule 62 — each of them specific and carefully delineated. There is no residual power to dispose of a live claim in some other way because the tribunal thinks it just to do so. That, in substance, is what the October order did.

The Trust's fallback was Courage Take Home Trade Ltd v Keys [1986] ICR 874, where the EAT upheld a refusal to award more than the sum already paid under an unenforceable settlement. Auerbach had already confessed misgivings about Keys in SPI Spirits (UK) Ltd v Zabelin [2023] EAT 147 at [35], and held here that it says nothing about the scope of the rule 64 power [62]. It is in any event a decision on the just and equitable formula governing the compensatory award for unfair dismissal, which is not the measure that governs a discrimination award.

Mr Edward had been paid in full, with interest at the judgment rate, before the order he attacked was made, and he now gets a fresh hearing on mitigation. It is not a comfortable position to defend; the judgment does not pretend otherwise. The rules are simply not drafted around who deserves what.

Practical points

• Lock the compromise before you ask the tribunal for anything. A draft consent order is not a settlement: either party may resile at any moment before the order is made, and an email to the tribunal does it. Where the claim includes an Equality Act complaint the binding routes are a s.147 settlement agreement or an ACAS-assisted contract under s.144(4)(a). Take one of them and the consent order becomes tidying-up rather than the operative act.
• Against a litigant in person the COT3 is usually the only route open. A qualifying settlement agreement under s.147 requires the claimant to have taken advice on the terms and their effect from an independent adviser, which a claimant acting in person frequently will not do. That is precisely why cases like this one end up relying on a bare consent order. Book the conciliation officer instead of drafting round the problem.
• Payment conditional on the sealed order is what broke this deal. The claimant's stated reason for resiling was that months had passed and no money had arrived. The EAT accepted at [67] that the Trust's explanation was correct: the order was the condition precedent to payment. A COT3 removes the delay and the reason together, because it binds on signature and does not wait on a judge.
• Read what the tribunal actually sends out. A legal officer's judgment dismissing on withdrawal, in a case where nobody withdrew, disposes of nothing and cost this case another five months. Check the sealed document against what was asked for, and apply to have it revoked at once if the two diverge.
• Where a bare consent order really is the only route, treat the gap as live risk rather than administration. Here it ran to eight and a half months. Chasing shortens the exposure but does not remove it: nothing stops a claimant resiling the day before the order is sealed; the tribunal's delay is not a defence to that.

Mr Edward was dismissed in May 2018. Eight years and two appeals later the remedy for his victimisation claim is still undecided. It will now fall to a differently constituted panel, EJ Goodman having retired.

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