United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1296_95_0603

Appeal No. EAT/1296/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 March 1995

Before

HIS HONOUR JUDGE N BUTTER QC

MRS T A MARSLAND

MR K M YOUNG CBE

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(1) RIVERSIDE HEALTH AUTHORITY

(2) DELTA SYNERGISTICS LTD          APPELLANTS

MS E CHETTY & OTHERS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR A BISHOP

(of Counsel)

Messrs Finers

Solicitors

179 Great Portland Street

London

W1N 6LS

For the 1st Respondents MR G WIGNAL

(of Counsel)

Messrs Bruce Lance and Co

87 Easton Street

High Wycombe

Buckinghamshire

HP11 1NF

For the 2nd Respondents MS K MONAGHAN

(of Counsel)

Ms S Hughes

Hammersmith and Fulham

Community Law Centre

142/144 King Street

Hammersmith

London

W6 OQU


 


JUDGE N BUTTER QC: This is an appeal by the Respondents below, to whom, for the sake of convenience we can refer to as Riverside and Delta respectively. They appeal from a decision of an Industrial Tribunal at London North, held on 3 October 1995. The Chairman, Mr Menon, sat alone and sent out his reasons on 25 October.

The Chairman was considering an application by Riverside and Delta to strike out the Originating Applications in which the Applicants claimed, among other things, that they had been unfairly dismissed. The Chairman was considering the application under Rule 13 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993, the relevant regulation was expressed in this way.

"13(1) Subject to the provisions of these rules, a tribunal may regulate its own procedure.

(2) A tribunal may -

(a) - (d) ...

(e) subject to paragraph (3), at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, respondent has been scandalous, frivolous or vexatious; ..."

The background can be stated quite shortly. The well known solicitors, Robin Thompson & Partners had acted for the Applicants. There were negotiations which led to an agreement. The effect was that each Applicant would receive £2,000 and that sum was, in due course, paid over. The payment was made by Riverside and Delta on the basis that it was in full and final settlement. Some of the Applicants were however, dissatisfied and wished to proceed in their applications before the Industrial Tribunal.

It was understandably conceded before the Industrial Tribunal that there had not been compliance with Section 140 of the Employment Protection (Consolidation) Act 1978. That section deals with restrictions on contracting out and says under subsection 1:

"(1) Except as provided by the following provisions of this section, any provision in an agreement (whether a contract of employment or not) shall be void in so far as it purports -

(a) to exclude or limit the operation of any provision of this Act or;

(b) to preclude any person from presenting a complaint to, or bringing any proceedings under this Act before, an industrial tribunal."

Then exceptions are set out under subsection (2), and subsection (3) provides certain necessary ingredients to be satisfied in relation to the conditions regulating compromise agreements.

The Chairman, in his extended reasons, dealt with the background and with the correspondence. In paragraph 13 he referred to the section of the Act and in considering the arguments presented to him, referred to the argument advanced by Mr Bishop, on behalf of Riverside and Delta, namely:

"13 ... It would be very unfair to the Respondents to allow the Applicants to proceed with the claims after having accepted the sums of money and having given every indication, and misled the Respondents into believing, that the cases had been settled."

In paragraph 15 the Chairman dealt with the so-called compromise agreement and accepted the concession already made that the conditions set out in Section 140 were not fulfilled. He said, in a few sentences, which have been the subject of criticism and comment before this Tribunal today:

"15 ... It, therefore follows that the Applicants have not withdrawn their Tribunal complaints and the Tribunal cannot compel them to do so. The wording of section 140 and Parliament's intention are quite clear. To strike out the claims would be to frustrate and to go against the clear wording of the statute. Although, Tribunals have an undefined discretion under the 1993 Regulations to strike out complaints, such powers are used sparingly and cannot be used merely to express disapproval of the conduct of particular parties when the wording of the statute is quite clear and unambiguous. I have derived assistance from N.R.G. Victory Reassurance Ltd v Alexander. However, I would have reached the same decision, unassisted by that authority, because of the clear wording of section 140.

16 In the circumstances, it would not be right for me to exercise my discretion under rule 13(2)(e) of the 1993 Regulations in the Respondents' favour. I, therefore, refuse the Respondents' application to strike out the IT1s of the six Applicants under the said rule 13(2)(e)."

In the case of N.R.G. Victory Reassurance Ltd v Alexander [1992] ICR 675, the Applicant there had received a sum of money and had agreed to waive his claim in connection with his employment. He had there received compensation in fact, which was greater than the maximum which could be awarded under the statute. The Employment Appeal Tribunal held nevertheless, the Chairman had not erred in declining to strike out the application. Reliance is placed upon some observations made by the then President, Mr Justice Wood, in particular at page 680 E of that report when the EAT there said:

"We find ourselves unable to say that the chairman erred in law in the principles applied in the exercise of a very wide discretion to refuse this application."

We bear in mind that that case involved consideration of an earlier, albeit in many ways, a similar regulation.

Here today, it is argued that the Chairman did not exercise his discretion. Reliance is placed upon the use of the word "cannot" in paragraph 15, to which I have already referred. What is said is that, having reached his conclusion that there had been non-compliance in relation to Section 140, he regarded that as a concluded matter. If so, it is curious that he should have dealt with one part of the argument presented by Mr Bishop in the latter part of paragraph 13.

It is true the Chairman did not deal with particular matters of prejudice upon which the Appellants seek to rely here. In the end, however, it is our unanimous view that, on a fair interpretation of the decision and reasons which he gave, he did exercise his discretion. He rightly attached importance to the non-compliance with Section 140. He did consider the arguments presented to him. In the end we reach the conclusion that he exercised his discretion in the way that he was permitted to do and we reach the conclusion in turn that no error of law has been demonstrated.

In the circumstances, and for these reasons, it follows that the appeal fails and is dismissed.