United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT IN PERSON


 


JUDGE PETER CLARK

1. This preliminary hearing arises in unusual circumstances. The Appellant, Mr Philton Moore, a barrister, commenced employment with the second Respondent, London Borough of Waltham Forest Council, in January 1998. The remaining individual Respondents are also employees of the Council.
2. During his employment he presented three Originating Applications to the Employment Tribunal, namely

i) Case No 2202969/2000. Presented on 16^th May 2000 alleging race and sex discrimination; breach of EPD; ETD; Article 119; ECHR Articles 3,6,14 and breach of contract (the first complaint)

ii) Case No 3204368/2000. Presented on 28^th November 2000 alleging race and sex discrimination; victimisation; breach of contract; unlawful deduction from wages etc (the second complaint)

iii) Case No 3200539/2001. Presented on 1^st February 2001 alleging unfair dismissal, failure to give written reasons for dismissal, breach of contract and assurances and breach of Human Rights

The respective Respondents to those complaints entered Notices of Appearance disputing the claims.

3. Following the first complaint, a Directions Hearing took place before a chairman, Ms V K Gay, sitting alone at Stratford on 18^th September 2000. That chairman made certain directions in the first complaint contained in a letter to the parties dated 21^st September 2000.
4. Following lodging of the second and third complaints, an interlocutory hearing took place before a different chairman, Mr J Cole, sitting at Stratford on 11^th April 2001. By a directions decision with written reasons dated 24^th April 2001, Mr Cole made certain further orders (the Cole Orders) including;

i) Consolidation of the three complaints

ii) Listing the full hearing of the combined complaints for 25 working days commencing on 7^th January 2002

iii) Dismissing the breach of contract claims on withdrawal by the Appellant

iv) Ordering the hearing of a preliminary issue, namely whether the Appellant had been dismissed by the Council for the purpose of bringing his complaint of unfair dismissal, listed for 25^th June 2001

v) Giving directions dealing with the trial bundle, witness statements and a chronology

5. By a Notice dated 20^th May 2001, the Appellant appealed against the Cole Orders to the Employment Appeal Tribunal (EAT/0656/01). In his grounds of appeal he raised complaints about the chairman's conduct at the hearing on 11^th April. Those complaints were further set out in the Appellant's affirmation dated 29^th June 2001. Mr Cole has responded to those complaints by letter dated 24^th July 2001, and the Appellant has provided his comments on that response by letter to the Employment Appeal Tribunal dated 30^th July 2001. He has also complained about Mr Cole's handing of the hearing to the Regional Chairman, Mr Lamb.
6. By an ACAS conciliated settlement, reduced into writing in the form of an ACAS COT 3 document, signed by the Appellant on 7^th October and on behalf of the Respondents on 10^th October 2001, the parties reached an agreement (the agreement), the principle terms of which appear to be:

i) that in full and final settlement of the Appellant's three complaints and this appeal, the Council will pay to the Appellant the sum of £44,800 without admission of liability within 14 days of their receipt of the form COT 3 signed by the Appellant. That sum, Mr Moore tells us, has now been paid to him

ii) the Appellant's employment with the Council will terminate on 24^th December 2001. He is to receive full pay but is not required to work during the remainder of his employment

iii) the Council to provide an agreed reference

iv) the parties to observe a confidentiality agreement

7. Notwithstanding the agreement, the Appellant seeks to pursue this appeal at this preliminary hearing originally fixed for today and remaining in our list at his request. At the outset of this hearing, we raised with him the question of our jurisdiction to entertain his appeal in the light of the agreement.
8. Mr Moore submits, in the absence of any authority which he is able to bring to our attention on the point, that although the complaints, and indeed this appeal, have been compromised as between the parties to the litigation, nevertheless the Employment Appeal Tribunal should exercise its supervisory role, as it was put by Mr Justice Morison in the unreported case of Tchoula v Netto Foodstores Ltd [1996], and consider whether or not the chairman misconducted himself in some or all of the ways alleged by the Appellant, bearing in mind the Appellant's right under Article 6(1) ECHR, incorporated into domestic law by the provisions of the Humans Right Act 1998, to a fair trial.
9. He submits that the Respondent need not be troubled by the inquiry which he invites us to carry out in order to test his account against that given by the chairman, Mr Cole, and applying the procedure suggested by the President, Mr Justice Lindsay in Facey v Midas Retail Security Limited [2000] IRLR 812. It would only be necessary for the Appellant to give evidence before us and, on the other side, the solicitor in private practice who represented the Respondent before Mr Cole on 11^th April 2001.
10. We have also researched the matter for ourselves. Although there is a good deal of authority as to the position where a party wishes to withdraw from a compromise agreement reached in settlement of proceedings, we have never come across a case in which the party wishing to pursue the appeal affirms the compromise agreement.
11. In the former type of case it is extremely difficult for such agreements to be set aside so that the underlying proceedings may continue. In our view, it is impossible in circumstances where the compromise agreement is not sought to be unpicked. The rationale behind that is obvious. The Employment Appeal Tribunal's function is to determine live issues between parties who remain in dispute, with a view to deciding whether or not the Tribunal below fell into error as a matter of law. Once the dispute has been resolved by agreement through conciliation between the parties, it would be a sterile exercise and disproportionate for the Employment Appeal Tribunal to, nevertheless, embark on the sort of inquiry which Mr Moore invites us to conduct. In these circumstances, we are quite satisfied that we have no jurisdiction, being a statutory Tribunal, to enquire into his allegations raised in the original appeal EAT/0656/01.
12. In these circumstances, whilst it is not strictly necessary for us to make any order, the appeal having been effectively compromised by the agreement, we add two things. First, for the avoidance of doubt, this appeal is dismissed and secondly, lest there be any doubt about it, Mr Moore has conducted his case before us with conspicuous and unfailing courtesy.