Appeal No.	 EAT/280/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 June 1999

Before
THE HONOURABLE MR JUSTICE CHARLES
MR L D COWAN
MR D A C LAMBERT

THE AARONCARE PARTNERSHIP	APPELLANTS

MRS T DAVIES	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANTS	

	MR JUSTICE CHARLES:	This case comes before us on a preliminary hearing for the Appellant to argue that he or she has a reasonably arguable case.

1	We have been notified by the Appellant, which is the Aaroncare Partnership, that they do not intend to be present at this hearing.  In taking that course they are acting consistently because the Partnership did not appear before the Employment Tribunal.

2	The decision that is the subject of the appeal is contained in full and clear Extended Reasons of the Employment Tribunal which were sent to the parties on 7 January 1999, the hearing having taken place on 30 November 1998.  The Employment Tribunal was unanimous in deciding that the Applicant’s complaint that the Respondents had unlawfully discriminated against her by victimising her contrary to the provisions of the Sex Discrimination Act (as amended) is well-founded and that the Respondents be ordered to pay the Applicant the sum of £1,500.00 as compensation.  As I have already mentioned the Appellants did not attend at the hearing and they therefore gave no evidence.  This was a deliberate decision.

3	The long and unhappy history of this case is fully set out in the Extended Reasons and we shall not repeat it.  The originating application before the Employment Tribunal was presented on 28 January 1998 and it acknowledges, and indeed relies on the fact, that the Applicant had brought earlier proceedings against the Respondents which proceedings had been settled.  In box 11 of her application the Applicant introduced  a statement, which said amongst other things:

“(1)  The applicant brought proceedings, specifically a claim of sex discrimination, against the respondent in June 1997 (Mrs T Davies v Arroncare (sic) Partnership 2102994/97).
(2)  The case was listed to be heard on 31st October 1997 but settled out of court via ACAS on 29th October 1997.
(3)  The applicant’s representative was sent the settlement cheque from the respondent on 14th November 1997.  The respondent also sent a covering letter and the signed ACAS COT 3 form.
(4)  The respondent’s covering letter stated, ‘we confirm that all residential and nursing homes in the area will be advised of the reason for your client’s dismissal from our employment’.  This did not form any part of the out of court settlement worded agreement.
(5)  The applicant’s representative wrote to the respondent on 12th December 1997 asking the respondent, inter alia, which residential / nursing homes had been contacted and what reason had been given for the applicant’s dismissal.”

4	In their Notice of Appearance the Respondents said this:

“(1)  This case has already been settled (copy ACAS Form COT (IT)) herewith.
(2)  The applicant is out of time.  The Tribunal has not any discretion to extend the time limits.
(3)  The applicant is vexatious and calculated to cause disruption to the respondents business of caring for the elderly and sick (copy letter 29.01.98 herewith).
(4)  The application is an abuse of the Industrial Tribunal procedure.
(5)  The facts of this case are entirely different from Coote v Granada Hospitality Ltd as the applicant’s ‘representative’ is well aware.”

5	This assertion of the Respondents before the Employment Tribunal, and the Appellant before us, was based on the settlement of the earlier proceedings and it is this assertion which forms the basis of this appeal.

6	We pause to mention that the proceedings before the Employment Tribunal were delayed to await the decision of the European Court of Justice in Coote v Granada Hospitality Ltd [1998] IRLR, at page 656 and that this case was relied on by the Employment Tribunal.  

7	The grounds of appeal do not include an assertion that the Employment Tribunal erred in law in relying on the Coote decision, if contrary to the contention of the Appellants the Employment Tribunal was not prevented from hearing the case by reason of the settlement of the earlier proceedings which are relied on as the protected act.  This is shown by the grounds of appeal which are in the following terms:

“The grounds upon which this appeal is brought are that the Industrial Tribunal erred in law in that:
On the 3rd November 1997 the Applicant signed ACAS Form COT3 (IT) accepting the sum of £500.00 ‘in full and final settlement ... of all and any claims which she could bring against the Respondent arising from her contract of employment and the termination thereof’.
In such circumstances the Tribunal had no jurisdiction to hear any further claim by the Applicant in relation to her contract of employment with the appellant.
This lack of jurisdiction was raised with the Tribunal by the appellant and a preliminary hearing requested on this point of law.
The Tribunal refused to hold a preliminary hearing and has thus issued an award based on the hearing that it was not entitled to call.”

8	In their appeal the Appellant relies on the decision of Lightman J, in BCCI v Ali & Another which, so far as my limited researches show, has not been fully reported but was reported in the Times of 25 January 1999, and has also been commented on in a number of legal publications.  In their documents they produced a short commentary on that case.  The report in the Times and that commentary shows that, in that case the Court was concerned with causes of action that existed at the time of the settlement, or as Lightman J found it to be, a compromise.  That distinction is, in our view, enough to deal with this appeal because it shows that the authority relied on does not assist the Appellants.  

9	Without having heard any argument from the Appellant our present view is that there is no reasonably arguable point that, on its true construction, the compromise entered into covered acts which took place and gave rise to causes of action after the compromise was entered into.  In our view, the wording of the compromise simply does not relate to future events which found future causes of action.  We would, in this context, also add two further points:

10	One, if one stands back and examines the possible effect of the Appellant’s submission, it is that once such a settlement is entered into, and probably whether or not the employee remains in the employment of the employer who is a party to the compromise but certainly if the employee does not, the bringing of the earlier proceedings cannot be a protected act for the purposes of a claim to victimisation.  In our judgment, in the light of the Coote decision concerning the position after employment has come to an end, or in a case where employment continues, that is a remarkable proposition and one that is wrong even if, in other circumstances, a compromise such as that entered into in this case could relate to future events which give rise to causes of action after the date the compromise was entered into.

11	Secondly, although it was not necessary for the Employment Tribunal to consider this issue, and it does not form any part of our reasoning, it seems to us that if the Employment Tribunal had thought that the compromise of the earlier proceedings resulted in a bar to their consideration of the new proceedings, a question would have arisen as to whether it should set aside the original compromise agreement on the basis of fraudulent misrepresentation.  In this context we note that Lightman J, in the BCCI case unsurprisingly referred to Bell v Lever Brothers [1932] AC 161 and in that case the House of Lords make it clear that agreements can be set aside if there has been dishonesty.

12	The point that would have arisen for consideration in this case is whether, at the time they entered into the agreement, the employers had the intention of circulating other Homes as they indicated they would do shortly after the compromise was effected and the payment made.

13	For the reasons given we would be minded to hold that there is no reasonably arguable point raised on this appeal.  However, we think it is right that as the Appellant has again chosen not to appear that before dismissing this appeal we should give them an opportunity to make representations to us on matters of law, either in respect of the application in the United Kingdom of the Coote case, or to advance further arguments based on the compromise relating to the jurisdiction of the Employment Tribunal.

14	We shall therefore direct that the Appellant be given 14 days from notification by this Tribunal of our decision to fix a further preliminary hearing at which they can (with or without representation) seek to persuade us, or another Tribunal, that the views expressed in this judgment are wrong.  If they do not apply to obtain a date within that 14 day period this appeal is dismissed for the reasons given in this judgment.