Industrial Tribunals Northern Ireland Decisions

 


Morrison v Hall & Anor (Interlocutory Issue) [2002] NIIT 00148_00 (12 December 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 00148/00

APPLICANT: Mrs Patricia Morrison

RESPONDENTS: 1. Mr A Hall

2. East Antrim Institute of Further & Higher Education

DECISION ON AN INTERLOCUTORY ISSUE

The unanimous decision of the tribunal is that the applicant's applications (for variation of the Order dated 16 August 2001) is refused.

Appearances:

The applicant was represented by Mr Eugene McGlone of Murphy Solicitors.

The respondent was represented by Ms Anne Finegan, Barrister-at-Law, instructed by Peter O'Rawe, Education & Library Boards Joint Legal Services.

REASONS

1. In these proceedings, the applicant complained, at paragraph 11 of her Originating Application, of acts of sex discrimination, contrary to the Sex Discrimination (Northern Ireland) Order 1976 ("the Order") and contrary also to Equal Treatment Directive.

The August 2001 Order

2. On 16 August 2001, a tribunal chairman made an Order in these proceedings, in the followings terms:-

"The application is stayed until further order. The parties reached an agreement in settlement of the application with the assistance of the Labour Relations Agency".

3. In this interlocutory application, Mr McGlone, on behalf of the applicant, asks us to vary the 2001 Order, by removing the stay.

Procedural Matters

4. In connection with this interlocutory application, a hearing for directions was held on 14 October 2002.
5. At that hearing, certain facts were agreed.
6. In accordance with the wishes of the parties, as expressed during the course of the hearing for directions, the tribunal determined that there should be a separate hearing in respect of the determination of the following issue:-

"Whether the applicant is entitled to pursue the Originating Application bearing Reference Number 0148/00 if she can prove that the respondents, or one of the respondents, is responsible for a substantial breach of the terms of settlement of case 0148/00".

7. Also with the agreement of the parties, it was arranged that each representative would provide legal submissions in writing in relation to the above issue.

The issue

8. As a result of written and oral representations from Mr McGlone, the tribunal agreed to expand the terms of the preliminary issue. As expanded, the issue was as follows:-

1. Whether the relevant terms of settlement constituted an effective settlement of the proceedings on 23 July 2001?

2. If so, whether the applicant is entitled to pursue the Originating Application bearing Reference Number 0148/00 if she can prove that the respondents, or one of the respondents, is responsible for a substantial breach of those terms of settlement?

The Facts

9. The following facts and other matters have been agreed between the parties:

(1) The Labour Relations Agency ("the Agency") took action in respect of the 0148/00 proceedings pursuant to Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996 ("the 1996 Order").

(2) As a result of that action, a settlement of ? proceedings was effected by the Agency. The terms of settlement were as follows:

"In consideration of the Applicant's withdrawal of complaint no 148/00SD/D the Respondent will offer and the Applicant shall accept the following terms in full and final settlement, of all claims however arising out of the Contract of Employment:

1. The Respondent confirms no impediment will occur to the Applicant's availing of NVQ Lever 4 Guidance Counselling Course offered by the Institute. The registration with the awarding body will take effect immediately and the applicant shall undertake to commence study upon appointment by the Institute of a mentor;

2. The Respondent agrees to an amendment to the Applicant's Written Statement of Main Terms and Conditions of Employment providing for her working week to continue on a permanent 3 day week basis and with her vocational areas (previously undertaken) to remain the same insofar as it practicable;

3. The Respondent shares the Applicant's desire to continue to promote a more harmonious working relationship and environment for both the parties;

4. The Applicant shall undertake to withdraw her complaint upon receipt of this jointly signed "CO3" Agreement.

(3) On or about 23 July 2001, all parties agreed to all of the terms of the settlement which have been set out above. However, although the applicant signed the terms of settlement on 23 July, the terms of settlement were not signed on behalf of the respondents until 6 August 2001.

(4) On 26 July 2001, the Agency wrote to the Secretary of the Office in a fax, which contained the following statement:-

"A settlement has been concluded between the parties as a result of conciliation action by the Labour Relations Agency".

(5) The Order which is the subject of the present interlocutory application was made on 27 July 2001.

(6) Although the applicant was fully committed to implementation of the agreement up to 6th August 2001, she no longer wished to be bound by the settlement, asserting that the respondents, or one of them, had, in the meantime, been guilty of a substantial breach of the terms of settlement.

The Submissions

10. In part, the written submission on behalf of the applicant addressed the question of whether or not there was, in fact, a substantial breach of the relevant terms of settlement. That question is not one of the issues which has been listed for determination by us. Accordingly, we have not had regard to that aspect of that written submission. Furthermore, the written submission contains factual assertions which have not been supported by any evidence presented to the tribunal and which are not agreed. We could not properly take account of such factual assertions, in those circumstances; accordingly we have not done so. However, subject to those two comments, we have paid careful attention to the written submission of the applicant's representative and we have also of course had due regard to his oral submissions; we have also taken careful note of the oral and written submissions on behalf of the respondents. The submissions to which we have had regard can be summarised as follows.
11. For the applicant, it was alleged that the terms of settlement were never binding because they did not embody the three essential requirements for a contract, namely offer, acceptance and consideration. If – as the applicant asserts – there was a substantial breach of the terms of settlement, soon after 23 August, it had the effect of entitling the applicant to re-open her case (Case Number 0148/00) "in its entirety".
12. The legal submissions on behalf of the respondent can be summarised as follows. First, the three requirements of offer, acceptance and consideration were ? , as is clear from 23 August terms of settlement. The applicant's counsel referred to Article 245 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order"), but pointed out that the situation in this case fell within the circumstances specified at paragraph (2)(e) of Article 245.
13. The tribunal drew the attention of the parties to the case of The Milestone School of English Limited –v- Leakey [1982] IRLR1. For the respondents, Ms Finegan drew the tribunal's attention to the case of Freeman –v- Sovereign Chicken Limited [1991] IRLR 408.

The Law

14. The general rule as to the effect of a settlement of civil litigation ("the general rule") is clearly described in the Leakey judgement at page 5, paragraph 14, in the following terms:

"In the case of an ordinary civil action it is the general rule that parties to it, if suijuris, are free to compromise the action on such terms as they think appropriate. Once the compromise has been reached the Court has no further power to deal with the matter. In Green –v- Rozen …. S? J used these words at page 746:

"… The Court has no further jurisdiction in respect of the original cause of action, because it has been superseded by the new agreement between the parties to the action, and if the terms of the new agreement are not complied with the injured party must seek his remedy upon the new agreement"

There may of course be cases where the agreement between the parties can be set aside, but so long as the agreement stands the plaintiff can no longer rely on the original cause of action".

15. It seems to be clear that an agreement cannot be set aside except on grounds of duress or mistake, grounds which are not relevant in the present context.
16. The general rule can of course be displaced if there is any relevant statutory provision to the contrary. In our view, Article 245 of the 1996 Order is not a relevant provision because it applies to a settlement only in so far as that settlement purports:

"(a) to exclude or limit the operation of any provision of [the 1996 Order] or

(b) to preclude a person from bring any proceedings under [the 1996 Order] before an industrial tribunal".

Article 245 of these proceedings have been brought under the 1976 Order (as distinct from being brought under the 1996 Order); accordingly, Article 245 has no relevance to these proceedings.

17. The tribunal considers that Article 77 of the 1976 Order, as amended, is the only statutory provision which arguably could displace the operation of the general rule. Article 77 has to be read subject to the amendment to paragraph 4(a) which was effected by Schedule 1 of the Industrial Tribunals (Northern Ireland) Order 1996. As amended, Article 77 in so far as material, is to the following effect:

(1) Paragraph (3) of that Article provides that a term of the contract (including any settlement) which purports to exclude or limit any provision of the Order is unenforceable.

(2) However, paragraph (4) of the same Article goes on to provide that paragraph (3) of the Article does not apply:

"to a contract settling a complaint to which Article 63(1) of this Order …. applies where the contract is made with the assistance of the Labour Relations Agency".

Conclusions

18. We are satisfied that the terms of settlement signed by the applicant on 23^rd July 2001 (as quoted by us above) embody all the terms of a bargain which had been made between the applicant and the respondent on 23 July 2001. Accordingly, it has been a valid offer and acceptance in this case. Furthermore, the promises which the applicant made within the terms of settlement are supported by consideration, as are the promises which the other parties made within the terms of settlement. In each instance, the consideration is "executory" consideration, which consists of the parties' neutral promises.
19. The complaint in these proceedings is a complaint to which Article 63(1) of the 1976 Order applies. The relevant terms of settlement constituted a contract which settled that complaint. That settlement was made with the assistance of the Labour Relations Agency. Accordingly, paragraph (3) of Article 77 does not apply to the relevant terms of settlement in these proceedings. Therefore, the general rule, which was described in the extract from the Leakey case set out above, does apply to the circumstances of this case.
20. Against that background, and for those reasons, this interlocutory application must be dismissed.

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Date and place of hearing: 12 December 2002, Belfast

Date decision recorded in register and issued to parties: