United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 737_94_1702

Appeal No. EAT/737/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 February 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR R H PHIPPS

MR W MORRIS

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MR M J DELANEY          APPELLANT

LONDON BOROUGH OF LAMBETH          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR M J DELANEY


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr Michael Delaney against the decision of the Chairman of the Industrial Tribunal, sitting alone at London South on 1 June 1994. After a hearing in which

Mr Delaney argued his case in person and there was no attendance on behalf of the Respondent London Borough of Lambeth, the Chairman decided that Mr Delaney's originating application should be dismissed. He notified full reasons for his decision on 22 June. Mr Delaney was dissatisfied with the decision, both as to the reasons given for it and the circumstances in which the hearing took place and he appealed by a Notice of Appeal served on 1 August 1994.

The purpose of today's preliminary hearing is to decide whether Mr Delaney's Notice of Appeal raises one or more points of law, which are reasonably arguable at the full hearing of the Appeal Tribunal. If he is unable to show that there is a reasonably arguable point of law, there is no purpose to be served in proceeding to a contested hearing between him and the Respondent Council.

The background to the dispute is that Mr Delaney presented an originating application to the Industrial Tribunal on 17 September 1993, in which his complaint was of a denial of rights under the Equal Treatment Directive. His case was that that he had been employed by the London Borough of Lambeth from 15 February 1987 until 30 November 1991, when he was dismissed by reason of redundancy. He brought a case against the Council. An ACAS agreement was reached on 24 February 1993. He alleged that during his employment he was denied his rights to equal treatment under the Directive relating to access to vocational training. That denial prevented his assimilation at Lambeth's altered employment organisations and led to him being made redundant. His complaint followed a European Court judgment given on 2 August 1993 and the suspension in the same month of the Lambeth Information Services Director, Mr Steggals, following the District Auditor's report which was critical of his management practises. He says that was a complaint which he could not have made earlier than those events. He wants compensation from Lambeth Council for the injuries their actions have inflicted on in. The Council contested the claim in the Notice of Appearance served in October 1993. The claim was contested on two grounds; first, that Mr Delaney had been dismissed on grounds of redundancy in November 1991. This complaint was therefore out of time. Alternatively he had made a complaint about his dismissal to the Tribunal and had settled it in a conciliated settlement. A copy of the settlement is attached, made between Mr Delaney and the Council and dated 24 February 1993. It was signed on behalf of each of the parties. Under that settlement the Council, without admission of liability, paid sums of money to Mr Delaney. The agreement provided, on the COT3 form, as follows:

"the Applicant agrees to accept this in full and final settlement of all claims which the Applicant could have brought against the Respondent before an Industrial Tribunal. In respect of which an ACAS Conciliation Officer is authorised by statute to endeavour to promote a settlement, and all rights relating to the Applicant's contract of employment and its termination. This settlement does not affect any rights the Applicant may have in relation to industrial injury claims."

After the Chairman of the Industrial Tribunal had set out the nature of Mr Delaney's complaint in his new originating application and had referred to the statutory provisions relating to time limits on the presentation of complaints of sex discrimination under the Sex Discrimination Act 1975, he referred to the new evidence cited by Mr Delaney in the form of the decision in the Marshall case. He referred also to the ACAS Agreement and stated his understanding of Mr Delaney's case. In paragraph 8 he said:

"As I understand it, the Applicant's case is that the terms of the above settlement do not cover the complaint of sex discrimination he now wishes to make. It appears to me, however, that they do. As I have already said, the Applicant had a cause of action in respect of sex discrimination some years before this settlement was made and I have no doubt that the words "all claims which the Applicant could have brought against the Respondent before an Industrial Tribunal, in respect of which an ACAS Conciliation Officer is authorised by statute to endeavour to promote a settlement, and all rights relating to the Applicant's contract of employment and its termination" are wide enough to include the Applicant's present complaint.

The Tribunal Chairman dismissed Mr Delaney's case for two reasons. First, it was out of time under the Sex Discrimination Act. It was not just and equitable to extend the time limit; and secondly the terms of the settlement entered into by Mr Delaney, with (we are told by him) the advice of the Legal Officer's of NALGO, precluded the continuance of this complaint.

On the hearing this morning Mr Delaney, with the help of a very comprehensive skeleton argument, presented a number of points. As to the time limit his answer is that, although the complaint is prima facie out of time, he did present it within three months of the facts becoming apparent to him. The facts which became apparent to him are not only the decision of the European Court in the Marshall case but also evidence in the District Auditor's report about Mr Steggals. Mr Delaney referred to what he described as a confused, chaotic and corrupt situation which had been covered up in Lambeth. He was unable to present a complaint of the kind which he now makes in his originating application before he knew of these facts.

On the question of the settlement, Mr Delaney appeared to assert (and accept) that what he had entered into was a bad bargain. He submitted that, although he had accepted the advice of NALGO's Legal Department in relation to the settlement, some three days before the date when the hearing before the Industrial Tribunal was due to take place, it had not been intended that such wide wording should be used in the settlement, as to preclude him from bringing this case based on new evidence. He added that the Industrial Tribunal had failed to take into account the hardship involved in rejecting his case, hardship to him, hardship in relation to Lambeth Council. The situation which had arisen there was not to be tolerated. For those reasons Mr Delaney submitted that the appeal raised arguable questions which should go to a full hearing. If he succeeded he would want the appeal to be allowed and the matter to be remitted to an Industrial Tribunal. He added to those specific points reference to the circumstances in which the case had been heard by the Chairman and in which his application for a review had been rejected on 22 July 1994. His complaint about the circumstances of the hearing are contained in one paragraph of the document which he submitted seeking a review. He says:

"My application to the Tribunal was made 'with clean hands' and in good faith; but I must say that its management of my case is deplorable. The Interlocutory Hearing on 20 APR 1994 was interrupted by my having to show that the Tribunal had jurisdiction to consider a complaint related to Directive 76/207/EEC which should have been determined by the Tribunal itself between my sending the Originating Application, 13 SEP 1993, and the Interlocutory Hearing. Next, the Preliminary Hearing was scheduled as a 'floater' and delayed to end of the day, thereby prejudicing any opportunity I might have had for a fair hearing. If I had agreed to re-scheduling the Hearing for another day, there was no guarantee that the Respondent would have appeared thereby resulting in a further delay. The Tribunal also seems to have taken a rather relaxed view of the contemptuous behaviour by the Respondent; to me, to the matter under consideration, and to the Tribunal, by leaving midday without giving any apologies or reasons, even though he would not have been able to offer any defence to my complaint. Finally, with all of this in mind, the comments in the Decision concerning what is '...just and equitable...' seem perverse in the extreme.

It does appear that there were unfortunate aspects of the circumstances in which the application was heard on 1 June. The Chairman said in his reasons that the case came on as a `floater' towards the end of the day and that the Council's representative had left the premises at lunchtime and did not return. He said his initial reaction was that the hearing should be postponed so that both sides could be heard. As Mr Delaney was anxious to proceed, he allowed him to begin opening his case. He then referred to the documents and summaries that Mr Delaney produced. It soon became apparent that either the hearing would have to be postponed or he would have to decide the preliminary issue on documentary evidence of written submissions, which meant reserving his decision. The Applicant preferred the second cause and he accordingly adopted it. He took no oral evidence, but it is an unfortunate aspect of some hearings that they may appear to the Applicants that they are dealt with in less than satisfactory manner late in the day. The complaint was dealt with in a little more detail by the Chairman when he refused the review. He dealt with the complaint that the management of the case was deplorable and said that Mr Delaney referred to a previous Interlocutory Hearing and stated that the Tribunal should have decided the jurisdictional point itself. The Chairman thought that it was difficult to reconcile that with Mr Delaney's complaint that he did not receive a fair hearing on that very point. He also dealt with his complaint that the decision contained an error of law. The Chairman correctly pointed out that that was a matter for an appeal rather than a review. That, we believe, is a summary of the main points that Mr Delaney wishes to ventilate on this Appeal. We have come to the conclusion that, though we fully understand why he feels aggrieved at his dismissal from Lambeth Council, particularly in the light of what he subsequently discovered, there is not an arguable point of law on this Appeal.

The Chairman was right in law on the point that Mr Delaney's case was out of time. There is a period of three months for bringing a complaint of sex discrimination. This case was presented long after the matters complained of. The Tribunal has a discretion to extend the time if it is just and equitable. That is a matter for the Tribunal's discretion in all the circumstances of the case. Mr Delaney has not identified an arguable error of law in the exercise of the discretion, either in acting on a mistaken principle of law or in disregarding relevant matters or taking into account irrelevant ones. Even if Mr Delaney was able to overcome the time matter, the settlement concluded between his representative and the Council's representative on 24 February 1993 is binding upon him and prevents him from bringing forward the claim he now wishes to make. As he accepts, the wording is wide. The only matters that are excluded from the settlement are rights relating to Industrial injury claims. All other matters relating to his employment and its termination are covered by the settlement, under which he received and accepted a substantial payment.

If we were to hold that settlements could be circumvented for the sort of reasons presented by Mr Delaney, it would not be safe for any employer or any employee to enter into a settlement. Every settlement carries with it the risk that one side or the other may discover subsequently facts or areas of law, which lead them to believe they had a stronger case than they thought they had at the time of the settlement. In our view, there were no grounds in law for doubting the validity and effect of this settlement. It bars Mr Delaney from bringing forward this claim. There may be other avenues that he can pursue in relation to his grievance against what he believes are corrupt practices at Lambeth. There is nothing that this Appeal Tribunal can do on this Appeal, as there is no arguable point of law. The Appeal is therefore dismissed.