Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 00483/97 FET

CLAIMANT: Suresh Deman

RESPONDENTS: 1. Dr G Gudgine

2. NIERC

DECISION ON A REVIEW

The decision of the Tribunal is that there are no grounds for setting aside the conciliated settlement between the parties, and the application to review the decision to stay the proceedings until further Order is refused.

Constitution of Tribunal:

Chairman: Mrs P Smyth

Members: Mr Gallagher

Ms Gribben

Appearances:

The claimant did not appear, nor was he represented. An application to adjourn the review application was refused on the ground that the claimant had made no effort to make travel arrangements for the hearing and there was therefore no good reason to adjourn the hearing. The claimant submitted written submissions in relation to the application for review which were considered and taken into account by the Tribunal.

The issue

1. The issue to be determined is whether the decision to stay all proceedings until further Order in circumstances where the parties had reached a conciliated settlement with the assistance of the Labour Relations Agency should be reviewed, and the decision revoked. In essence, the issue is whether a conciliated settlement can be set aside and if so whether the claimant has established grounds for setting it aside.
2. The Tribunal heard evidence from Ms Suzanne Hamilton the Conciliation Officer who drafted the document setting out the terms of agreement reached between the parties on 24 April 2007. Ms Hamilton confirmed that the signature on the document is that of the claimant.
3. The claimant stated that his application for review of the decision to stay the proceedings is based on the following grounds:-

(a) The claimant was not aware that the Labour Relations Agency was equivalent to ACAS. He did not have the benefit of legal or other independent advice.

(b) The claimant had requested that a cheque be made payable to the Council for Ethnic Minority or to solicitors acting on his behalf in another case, due to difficulties in getting a personal cheque cashed. The respondent had refused to make a cheque payable to a third party. The claimant stated that he had agreed to accept a Banker's Draft which he alleged "is not an account payee so that he could cash it".

(c) On the claimant's return home to England after signing terms of settlement, he discovered a fax which had been sent from the Office of the Tribunals on 23 April 2007 enclosing correspondence from Mr Titterington, a witness whom the claimant had called on his behalf. He stated that the correspondence from Mr Titterington had not in fact been received because the fax machine had run out of paper. He immediately requested a further copy of the correspondence. The claimant believes that if he had been aware of Mr Titterington's letter before an agreement was entered into with the respondent, he could have negotiated a better settlement. The claimant alleged that "the agreement was reached in deception in which the Tribunal clerk withheld the vital information from the claimant". The claimant was sent a letter from the Secretary to the Tribunal in which she explained that the correspondence from Mr Titterington had not been copied to the respondent. Thus, neither party was aware of the correspondence when the agreement was entered into.

(d) On the morning of 24 April 2007, the claimant stated that Mr Mulqueen, counsel for the respondent, informed him that he intended to correct previous assertions he had made in relation to evidence which Mr Nesbitt would give to the Tribunal.

(e) The claimant relied on the fact that he has previously complained about Mr Dickson of The Labour Relations Agency and, "since Mrs Hamilton the Conciliation Officer worked under Mr Dickson or in the same organisation therefore Mrs Hamilton's advice cannot be construed as independent".

4. It is clear from the decisions of the EAT in Clarke and Others v Redcar and Cleveland Borough Council; Wilson and Others v Stockton-on-Tees Borough Council [2006] IRLR 324, that a conciliated settlement will not be set aside arising out of the actions of a conciliation officer unless bad faith or unfair methods are established. Judge McMullan QC stated that "the ACAS Officer (the English equivalent of the LRA Officer) has no responsibility to see that the terms of the settlement are fair on the employee … the ACAS Officer must never advise as to the merits of the case … indeed it might defeat the officer's very function, if she were obliged to tell a claimant, in effect, that they might receive considerably more money". He added that "it is not for the Tribunal to consider whether the officer correctly interpreted her duties; it is sufficient that the officer intended and purported to act under the section." He also made clear that ACAS' view of its duties and practice since its foundation has been that its officers do not advise on the merits of a full settlement.
5. There is no evidence to suggest that Ms Hamilton acted in bad faith or adopted any unfair method to achieve a settlement.
6. A conciliated settlement can also be set aside on common law grounds. Harvey on Employment Law confirms at Division T, Paragraph 394, that mistake, duress or illegality may provide grounds for setting aside the agreement.
7. The letter provided by Mr Titterington is an official University letter confirming that the University will not normally consider an individual who has taken premature retirement for re-employment in any position for a period of four years or until sufficient time has passed to cover the costs of the lump sum payment, whichever is greater. The Tribunal does not accept that this letter constitutes evidence that the claimant was unlawfully discriminated against or victimised. The Tribunal is not satisfied that the claimant has established mistake, duress or illegality which would entitle him to a decision setting aside the conciliated settlement. In particular, there is no evidence to justify the claimant's assertion that the clerk to the Tribunal "withheld vital information from the claimant or acted in any way improperly".

Chairman:

Date and place of hearing: 2 July 2007, Belfast

Date decision recorded in register and issued to parties: