Appeal No.	 EAT/281/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 June 2000

Before
HIS HONOUR JUDGE J ALTMAN
MR D J JENKINS MBE
MISS S M WILSON

MR DAVID DURU	APPELLANT

GRANADA RETAIL CATERING LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A ADENJII
(Representative)	
For the Respondent		

JUDGE ALTMAN

1	This is an appeal from the decision of the Employment Tribunal at Ashford on 10 January 2000, whereby they found that a concluded settlement had been reached through the conciliation officer of the Advisory Conciliation Arbitration Service, as a prelude to the continuation of the application by which decision the application was, presumably, dismissed.

2	It seems to us that the argument is that there were oral discussions between the Appellant and the Representative of ACAS.  The Employment Tribunal concluded that those oral discussions led to a concluded agreement, following the case of Gilbert –v- Kembridge Fibres (1984) ICR 189 which said that as a matter of law the COT 3 form is not a precondition of an agreement through the auspices of ACAS.

3	The Appellant says there were oral discussions but a concluded agreement was never reached.  The relevant finding is contained in paragraph 4(vii) of the Employment Tribunal’s reasons in which the evidence they had heard was to some extent paraphrased.  First, there seems to be a finding that the Appellant twice confirmed that the conciliation officer should convey an acceptance, but in the next sentence there seems to be a suggestion that there was still to be some discussion as to the working out of a concluded agreement, and in the following sentence there is reference to the COT3 form as going to be prepared in “draft” form.  It could be argued that if it was to be prepared in draft that would be for the purpose of changing it and amending it before the final version was signed, which arguably may imply that a concluded agreement had not at that stage been reached.  As the existence of an agreement to compromise an application is a matter for legal construction based upon primary facts as found, it seems to us that there is an arguable point of law arising out of the way in which the decision is there expressed, as to whether in fact there was a concluded agreement on the facts before the Employment Tribunal. 

4	Accordingly this matter is, we find, properly arguable in full before the Employment Appeal Tribunal.  We direct that it be listed for ½ day in category C.  Skeleton arguments are to be exchanged not less than 14 days before the hearing.

5	It seems to us that it would be very helpful if the Chairman could provide Notes of Evidence of the conversation on the 13 December 1999 as taken from any witnesses, no doubt particularly the Appellant and the conciliation officer, and any relevant witness statements on that point and any documentary evidence.  We give a direction for the taxation of the Appellants legal aid costs, but we do not make any other order as to costs.