Pre-termination negotiations under s.111A ERA 1996, and the statutory conditions for a valid waiver of Equality Act claims. Bathgate v Technip Singapore PTE Ltd.
Consent orders; contracting out; certificate of correction. Solicitors for a group of unfair dismissal claimants wrote asking that their applications be withdrawn following negotiated reinstatement; the employer consented and the tribunal made an order in the agreed terms. More than a year later one employee said his name had been included in error. The EAT allowed the employer's appeal against the resulting certificate of correction on the ground that it had not had the opportunity to make representations, and held obiter that the application of s.140 EPCA 1978 to the underlying agreement made no difference: once a decision has properly been made by the tribunal on the information before it, absent fraud or misrepresentation that is the end of the matter, and 'the purpose of section 140 is exhausted' ([1981] ICR at 643A-E). Relied on in Edward v North London NHS Foundation Trust for the principle that the route to resolution involves a decision made by the tribunal itself.
Settlement; consent orders; contracting out. Following a finding of unfair dismissal the parties agreed a compensation figure which s.140 EPCA 1978 (now s.203 ERA 1996 / s.144 EqA 2010) prevented them from bindingly compromising. The EAT accepted that 'there is no reason at all why adult parties should not reach an agreement subject to the order being made by the court', the court retaining a discretion whether to make the order sought. In Edward v North London NHS Foundation Trust HHJ Auerbach held the ratio to be unclear, the cross-appeal having succeeded on a construction of s.140 he considered problematic, so the case is not binding authority that a tribunal may make a consent order giving effect to an unenforceable settlement.
Costs; settlement offers; the Calderbank principle (automatic costs for rejecting a reasonable offer) does not apply in employment tribunals, but rejection of a 'without prejudice save as to costs' offer is evidence of unreasonable conduct that a tribunal may consider when exercising its costs discretion.
Evidence; 'without prejudice'; existence of a dispute; grievance. The EAT (Cox J) held that an employee's formal grievance did not bring a later meeting within the without prejudice rule. Called to a meeting on her return from maternity leave, opened as 'without prejudice' and said to be independent of the grievance, the claimant was told her job was no longer viable and offered a settlement dressed as redundancy. The meeting was not a genuine attempt to settle the grievance, and no dispute about termination existed, so she could rely on it in her sex discrimination claim [IDS 15.88]. Barnetson v Framlington Group Ltd, which finds a dispute once the parties contemplate or could reasonably contemplate litigation, is reconciled on the footing that the rule protects only communications aimed at settling the particular dispute that has been raised [IDS 15.90]. The exception for perjury, blackmail or other unambiguous impropriety derives from Unilever plc v Procter & Gamble Co, not from this case.
Settlement; dismissal of claim on the basis of a settlement not complying with the statutory conditions. Race and sex discrimination claims were settled by an exchange between representatives shortly before the hearing, which the claimant did not attend; the tribunal, told a settlement had been reached, dismissed the claims. The agreement did not satisfy the conditions now in s.147(3) EqA 2010, and the claimant argued the tribunal had erred by dismissing without first ascertaining that a valid agreement had been concluded. The EAT disagreed: nothing in law requires a tribunal to ensure that agreed terms comply with the statutory provisions before it permits a claim to be dismissed [19]. Considered in Edward v North London NHS Foundation Trust [44], which reads the tribunal as having dismissed the claim on the basis that it had been settled, the claimant's advocate having accepted at the hearing that the matter was 'withdrawn'.
Interim injunctions; NDAs; there is a strong public interest in maintaining the confidentiality of contracts (NDAs) even where wrongdoing is alleged.
NDAs; COT3; breach of confidentiality. Cavanagh J dismissed the employer's appeal: an ex-employee's disclosure of the fact and amount of a COT3 settlement to a third party did not release the employer from paying the remaining instalments. The generic confidentiality clause was not a condition, expressly or by necessary implication: confidentiality was ancillary to the bargain, the employer faced no real commercial risk, and treating it as a condition would forfeit the settlement for any trivial disclosure, even to a spouse [52]-[61]. It was an intermediate term, breach of which can be repudiatory or sound only in damages depending on its seriousness [65]; this disclosure showed no intention to abandon the contract and was not repudiatory [66]-[68]. An employer who wants confidentiality to bite should make the term a condition expressly or provide for repayment on breach [64]. In a sensitive case confidentiality may be the essence of the bargain, but the agreement will usually say so [55].
Settlement Agreements; s.147 EqA; a settlement agreement *can* validly compromise future/unknown claims if clearly drafted and specific.
Section 111A protected conversations; an 'ambush' meeting and a 48-hour deadline to consider a verbal settlement offer did not constitute 'improper behaviour' on the specific facts, but such findings are nuanced and fact-specific.
Section 111A protected conversations; an 'ambush' meeting without notice or the opportunity for a companion must be considered when a tribunal determines whether there has been 'improper behaviour' under s.111A(4) ERA.
Consent orders; rule 62 ET Procedure Rules 2024 (formerly rule 64 of the 2013 Rules). Three holdings. (1) The words 'in writing or orally at a hearing' are to be read so that 'at a hearing' governs 'orally' alone: the rule applies to terms agreed in writing at any time in the life of a claim, and the tribunal need not convene or await a hearing [35]-[37]. (2) The fact that a full and final settlement provision would be unenforceable by the respondent by virtue of s.144 EqA 2010 (or its equivalents) does not preclude a consent order disposing of the complaint; the claim ends because the tribunal so decides, not by contract, so nothing is contracted out [38]-[50], following the reasoning in Times Newspapers Ltd v Fitt. (3) The rule confers no power to make an order where a party who previously consented has, before the tribunal determines the matter, told the judge that they no longer consent: an order cannot be identified as made 'by consent' when the tribunal knows one party opposes it, which 'does violence to language' [55]-[56]. Left open at [57]: a change of mind not communicated to the judge. A live complaint leaves the tribunal only by an enforceable settlement agreement, a withdrawal under rule 50, or a rule 62 consent order; there is no residual power to dispose of it otherwise merely because it would be just [58]-[59].