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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Wallwork v Harvey Nichols & Company Ltd [1999] UKEAT 1400_98_2701 (27 January 1999)
URL: http://www.bailii.org/uk/cases/UKEAT/1999/1400_98_2701.html
Cite as: [1999] UKEAT 1400_98_2701
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| At the Tribunal | |
Before
HIS HONOUR JUDGE H WILSON
MR R SANDERSON OBE
MISS S M WILSON
MRS PINKY ESTHER WALLWORK APPELLANT
HARVEY NICHOLS & COMPANY LIMITED RESPONDENT
| APPELLANT | |
| RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
| For the Appellant | MR I CHOWDHARY (of Counsel) Messrs Hayat & Co Solicitors Suite 5-6, 1st Floor 151 Stamford Hill London N16 5LG |
JUDGE WILSON: This is an appeal which arises out of a decision of the Industrial Tribunal at London (South) on 17th October 1997. The unanimous decision of the tribunal states that:
"Terms of settlement having been agreed between the parties, in accordance with terms in the Schedule hereunder, it is Ordered that this Originating Application be dismissed on withdrawal by the Applicant."
There then follows a Schedule of requirements so far as the respondents and the applicant to that case were concerned. The form of the Order was the frequently used Tomlin Order. The difference between the Order as framed in this case and a conventional Tomlin Order is that the latter provides for all proceedings in an action to be stayed because the parties have come to an agreement but provides liberty to apply in case of default on the agreement. It is clearly established that, if a party defaults to an agreement, the remedy of the injured party - in the case of a broken agreement brokered in Industrial Tribunal proceedings - is to bring an action for specific performance in the County Court. (See Dashwood v Dashwood [1927] WN 276.)
In the case before us, the appellant's legal advisers, upon default by the respondent Company, sought to persuade the Industrial Tribunal to re-open the matter. By letter dated 25th September 1998, the Chairman refused so to do.
Mr Chowdhary has argued today that the Chairman of the Industrial Tribunal was in error to refuse to allow the appellant to go back to the tribunal to report the position so far as the respondent Company's failures to honour the agreement are concerned.
In our judgment, despite the fact that the appellant has not withdrawn her original application, the proper course for her to adopt is to institute proceedings in the County Court for damages for breach of the agreement. We note that she has in fact fresh grounds for an application to the Employment Tribunal complaining of racial discrimination and that action appears to rely upon the matters of breach which have been before us. However that may be, in our judgment this appeal is misconceived and is dismissed.