United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS SUZANNE McKIE (of Counsel) Instructed by: Messrs Berwin Leighton Paisner LLP Solicitors Adelaide House London bridge London EC4R 9HA
For the Respondent	MRS S BOATENG (The Respondent in Person)


 


SUMMARY

PRACTICE AND PROCEDURE

Case management

Admissibility of evidence

Application for witness order in respect of opposing party's former solicitor. Waiver of legal privilege. Relevant to question as to whether a compromise agreement is valid and effective. ET refusal to order solicitor's attendance as a witness reversed. Appeal allowed.


 


HIS HONOUR JUDGE PETER CLARK

1. This case is proceeding in the London (South) Employment Tribunal. The parties, as I shall describe them, are Mrs Boateng (Claimant) and the National Centre for Young People with Epilepsy (Respondent). I have before me for full hearing an appeal by the Respondent against the interlocutory order of Employment Judge Hyde contained in a letter to the parties dated 8 September 2010 and affirmed following a further application by the Respondent in a second letter dated 17 September refusing the Respondent's application for a witness order in respect of the Claimant's former solicitor, Mr Martin Fletcher of Allen Barfields, solicitors in Croydon. To order a party's former solicitor who has advised her in connection with the dispute between these parties to attend a hearing at the behest of the opposing party appears to be counter-intuitive. Nevertheless that proposition requires careful analysis against the particular circumstances in the present case.

Background

2. The Respondent is a charity specialising in providing residential services for young persons with epilepsy. The Claimant commenced employment with the Respondent as a night support worker on 12 June 2006. She continued in that employment until 8 July 2010 in circumstances to which I must return. On 26 March 2010, she presented a claim form ET1 to the Employment Tribunal in which she complained of unlawful race and age discrimination. She is black and was born on 8 March 1948. By their form ET3, the Respondent resisted those claims. The parties then agreed to mediation. Mrs Frances Maynard of CEDR was appointed mediator and a mediation meeting was held on 8 July at which the parties were present and in the Claimant's case, represented by Mr Fletcher. The upshot was that an agreement was, on the face of it, reached between the parties and that agreement was contained in a signed compromise agreement (CA) which purported to comply with the contracting out provisions of the Race Relations Act 1976 (RRA) and Employment Equality (Age) Regulations 2006 (the Age Regulations).
3. The effect of the CA was that the Claimant's employment would terminate on that day, that she would withdraw her claims before the Employment Tribunal and bring no further claims arising out of her employment and its termination, whereupon the Respondent would pay her notice pay and what is described as ex gratia compensation for loss of employment in a sum there set out together with a reference from the Respondent. There are other terms of the CA which are not material for present purposes.
4. After the signing ceremony, everyone shook hands including the Claimant's son, Lesley Bediade and daughter, Cynthia Arthur, who were present to support their mother during the mediation process, which Mrs Boateng tells me lasted from about 9.30am in the morning until about 5.00pm in the afternoon.
5. That appeared to be the end of the matter. However, that was not the case. The following day, 9 July, the Claimant emailed the Respondent's solicitors stating that the previous day's agreement was null and void apparently on the basis that it had been signed by David Ford, the Chief Executive of the Respondent who was present at the mediation, in her place. The case was to continue in the Employment Tribunal.
6. Pausing there, what appears to have happened is that by mistake the Claimant signed one of the two or three copies of the CA in the "employer" box. That description was then altered to employee and Mr Ford initialled the amendment on behalf of the Respondent.
7. The Respondent's solicitor responded immediately, contending that the CA was valid and suggesting that the Claimant spoke to her solicitor on the point. He pointed out that under the terms of the CA she was required to withdraw her Employment Tribunal claims as a pre-condition of receiving the lump sum payment promised by the Respondent. The Claimant did not withdraw her claim. On the contrary, she has pursued that claim in the Tribunal. So the Respondent replied on 19 July to strike out the claim in light of the CA. A pre-hearing review (PHR) to consider that application was listed on 24 September. That date has been vacated pending the outcome of this appeal and no further date has yet been fixed at the Employment Tribunal.
8. In preparation for the PHR, the Respondent applied to the Tribunal for witness orders in respect of Mrs Maynard, the mediator, and Mr Fletcher, the Claimant's by now former solicitor. That application dated 25 August followed witness statements lodged by the Claimant and her two adult children which suggested that her solicitor had not properly represented her interests and they criticised the conduct of the mediator. I note from the Claimant's witness statement that during the mediation the parties were in separate rooms with the mediator passing between the two. Thus neither party was privy to what was happening in the other party's room, unlike the open court process with all the parties present throughout.
9. In response, Mr Fletcher claimed effectively legal professional privilege and declined the Respondent's solicitor's invitation to attend the PHR as a witness. CEDR vigorously opposed the Respondent's application on behalf of Mrs Maynard. The nature of the Respondent's application for witness orders was that the Claimant was challenging the validity of the CA and, in making allegations of impropriety against Mr Fletcher and Mrs Maynard, had waived any confidentiality or legal privilege. The Respondent could not properly respond to those allegations because they were not present and privy to the discussions involving the Claimant, the legal advisor and indeed the mediator. That application was opposed by the Claimant in a letter to the Tribunal of 4 September which I have not seen. Having considered the rival contentions on paper, Employment Judge Hyde refused the Respondent's application for both witness orders. Her reasons are pithily stated in a letter dated 8 September in which she said this:

"It appears to the Judge that the matter of determination at the Pre-Hearing Review is whether a compromise agreement was signed which meets the conditions in section 72(4)(A) read with section 72(4)(aa) (Race Discrimination Conflict) of the Race Relations Act 1976, and the conditions in paragraph 2(2) read with paragraph 2(1)(b) of Part 1 of Schedule 5 to the Employment Equality (Age) Regulations 2006.

Neither set of provisions refers to the mediator or facilitator of such agreement therefore the Judge does not consider it appropriate to order the attendance of mediator, Mrs Maynard."

The letter does not explain in terms why no order was made in respect of Mr Fletcher.

10. The Respondent's solicitors wrote back on 13 September, withdrawing the application for a witness order in respect of Mrs Maynard, which is no longer pursued before me, but asked the Employment Judge to reconsider their application in respect of Mr Fletcher. They made the point that at the PHR the Tribunal could not properly judge whether the CA was validly concluded without hearing from Mr Fletcher as to the allegations raised against him by the Claimant. In particular, it is a requirement of the relevant legislation that the complainant received advice from the relevant independent advisor, here Mr Fletcher, as to the terms and effect of the proposed agreement. Mrs Boateng appeared to be saying she did not receive appropriate advice from Mr Fletcher, something which he appears to dispute in correspondence, particularly in his letter dated 12 July, which she had chosen to disclose to the Respondent along with her letters to Mr Fletcher.
11. The Employment Judge responded on 17 September saying this:

"Employment Judge Hyde has reconsidered the application and remains of the view that it would not be necessary or appropriate to summon Mr Fletcher to attend."

Again, on the face of it, there would appear to be no reasons as to why it was neither necessary nor appropriate to summon Mr Fletcher to attend. Against that background, this appeal is brought.

Compromise Agreements

12. To the general rule of employment protection legislation (see for example RRA section 74(1)) that a party cannot contract out of his or her rights under the relevant legislation, there are exceptions (see section 74(2)). In particular, where a settlement has been conciliated through ACAS leading to a COT 3 agreement or where a compromise agreement has been reached which complies with the conditions set out in section 72(4)(a), identical provisions apply in the 2006 Age Regulations.
13. Where a COT 3 agreement or compromise agreement is reached requiring the Claimant to withdraw her claim, the claim cannot be pursued in the Employment Tribunal. In these circumstances it is appropriate for the Tribunal to strike out the claim under rule 18(7) of the ET Rules as it would where a new claim is brought which mirrors an earlier claim against the Respondent which had been previously determined and thus an issue of estoppel arises.
14. However, as Mr Justice Silber recently pointed out in Industrious Limited v Horizon Recruitment Limited [2010] IRLR 204, having reviewed the earlier cases, where there is a challenge to the validity of a CA the Tribunal must determine whether or not it is valid and enforceable.

Witness Orders

15. The power to make a witness order is contained in ET rule 10(2)(c). I agree with Ms McKie that in deciding whether to grant a witness order, the Tribunal or, more usually, the Employment Judge, must be satisfied on two matters. The first that the proposed witness can prima facie give evidence which is relevant to the matters in dispute and, secondly, that an order is necessary in that without an order the witness will not attend the hearing voluntarily (see the old case of Dada v Metal Box [1974] ICR 559 NIRC)
16. To that formulation I would add this to the first requirement on the facts of the present case. The witness' evidence must not only be prima facie relevant, but also admissible. Plainly, if Mr Fletcher's evidence is to be excluded on the ground of legal professional privilege, an order for his attendance ought not to be made.

Legal Privilege

17. On the face of it, communications between the Claimant and Mr Fletcher, her legal advisor, in the mediation proceedings are privileged. The question here is whether the Claimant, to whom that privilege is attached, has waived privilege.
18. As to that question, I am much assisted by the judgment of Mr Justice Elias, then President, in Brennan v Sunderland City Council [2009] ICR 479. In determining whether or not privilege has been waived, the underlying principle is one of fairness between the parties. If one party relies on confidential communications with his or her legal advisor, is it fair on the other party not to have access to the legal advice received?

The Appeal

19. Appeals to the EAT against interlocutory Tribunal decisions do not involve a re-hearing. The EAT's jurisdiction is limited to correcting errors of law. Normally that involves finding that the Employment Judge's order was "Wednesbury unreasonable"; that is that it took into account irrelevant matters, failed to take into account relevant matters or otherwise reached a decision which no reasonable Employment Judge could reach (see Noorani v Merseyside TEC Limited [1999] IRLR 184 in relation to witness orders).
20. Prior to this hearing, an application was made on behalf of the Respondent to amend the grounds of appeal to add a further a ground that the Employment Judge's reasons were not "Meek compliant". That application was put over by the Registrar until today's hearing. It was renewed by Ms McKie and opposed by Mrs Boateng. In the event Ms McKie did not pursue it.
21. I have, of course, taken full account of this every experienced Employment Judge's observations in the Tribunal letters of 8 September and 17 September. In truth, it is unclear to me precisely why it was thought unnecessary and inappropriate to summon Mr Fletcher to attend. I must therefore draw some inferences from that express conclusion.
22. First, can Mr Fletcher give prima facie relevant evidence at the PHR? The answer to that is plainly he can. Ms McKie has carefully taken me through the correspondence and the witness statements of the Claimant from which it is absolutely plain to me that the thrust of the Claimant's opposition to the strike out application is that the compromise agreement is not enforceable and, in particular by reference to clause 9.3 of that agreement, that her solicitor, Mr Fletcher, was not independent in acting on her behalf - he was acting in the interests of the Respondent, and further that he did not advise her as to the terms and effect of the agreement which she signed. Instead, on her case, he was more concerned with a potential personal injury action which she might bring against the Respondent as a result of being kicked by a student when on duty.
23. In order to meet that case, the Respondent, it seems to me, is in very grave difficulties. On the one hand is the account given by the Claimant and her two children as to the dereliction of professional duty on the part of Mr Fletcher. On the other hand there is his non-acceptance of that charge in his letter of 12 July. Unsurprisingly he took no further part thereafter, taking, I imagine, the usual stance of a solicitor that everything that happens between him and his client is sacrosanct and cannot be revealed to the world at large.
24. However, in this case, it seems to me that prima facie the Claimant has waived her right to legal professional privilege because she is reliant on the alleged failure on the part of her solicitor to act in her best interests and to advise her, as required by the legislation, as the means by which she can avoid the effect of the compromise agreement which on its face requires her to withdraw these proceedings.
25. In these circumstances, applying the fairness principle to which Mr Justice Elias, as he then was, referred in Brennan, it seems to me manifestly unfair on the Respondent not to have the opportunity to place before the Employment Tribunal the evidence of Mr Fletcher which will either support the Claimant's account or otherwise. If the latter, then it is to the Employment Tribunal, as the judge of fact, to decide whose account it believes.
26. It is therefore necessary for him to attend the Tribunal hearing but he has made it clear that he will not do so voluntarily and, therefore, it is necessary to issue a witness order else he will not attend.
27. In these circumstances I shall allow this appeal, set aside the orders of the Employment Judge, and direct that the Employment Tribunal shall issue a witness order to Mr Fletcher to attend the PHR still to be listed.
28. During the course of argument a question arose as to whether or not the Tribunal, and indeed the EAT, should direct Mr Fletcher to provide a summary of his evidence for use by the parties and the Tribunal in advance of the hearing. I invite him to do so, but without compulsion. Indeed I am not persuaded by Ms McKie that I have power under ET rule 10 to make that order. Of course, there is no property in witnesses and either or both of the parties are free to approach Mr Fletcher and invite him to provide a witness statement which can then be served on the other party and the Employment Tribunal.