Mr T Fung v Chief Constable of Greater Manchester Police: 2400001/2024
EMPLOYMENT TRIBUNALS
Case No 2400001/2024, 2407182/2021
Between
Mr T FungClaimantChief Constable of Greater Manchester PoliceRespondent
Before
Employment Judge AspinallIn person for claimantMr Thomas Ward (instructed by Counsel) for respondentDate 5 September 2024
REASONS
[3]By a claim form dated 1 January 2024, having entered early conciliation on 22 November 2023 and achieved a certificate on 20 December 2023, the claimant brought a complaint of race discrimination victimisation. He said that his protected act was the bringing proceedings in claim number 2407182/2021. In those Case No: 2400001/24 2 proceedings he complained about discrimination in the promotion processes at Greater Manchester Police. He entered into settlement of the 2021 proceedings, and was represented in that settlement by solicitors, a settlement was recorded in a COT3 agreement dated 21 November 2022. 2. In the present proceedings the claimant says that he has been victimised because of those 2021 proceedings. He refers to 5 “punishments” as victimisation detriment within section 27 Equality Act 2010, which he says were done to him because of his 2021 proceedings. Some of those five punishments set out below as P1, P2 and P3 predated the COT3 agreement, and some, P4 and P5 post dated the COT3 agreement. 3. The respondent defended the present proceedings and made an application to strike out the complaints on the basis that they had no reasonable prospect of success because the tribunal had no jurisdiction to hear them, the claimant being precluded from bringing them by the COT3 agreement.[4]Employment Judge Batten listed the matter for our public preliminary hearing today to determine the following issue Whether the claimant is precluded from bringing any claim in the employment tribunal against the respondent at all, and or whether the claimant is precluded from bringing the complaints in the present proceedings case number 240 0001/ 24 against the respondent[5]The claimant was a litigant in person today. He said that respondent’s act of detriment at P4 which has engaged him in disciplinary proceedings has meant that he has had to use the limited resources his Police Federation membership offers him in addressing disciplinary proceedings rather than these victimisation proceedings. He has had my support today in accordance with the Equal Treatment Bench Book as would any litigant in person. We have avoided legal jargon, explained things clearly in clean English and used checking back questions to ensure that the claimant has been able to fully engage in his proceedings. We have also had the support of an interpreter.[6]We agreed to proceed by way of submission only. First the COT3 was translated, whilst I read the written submissions of the claimant from 18 August 2024 and the respondent dated 2 September 2024, then we proceeded with Mr Wood going first and Mr Fung responding.[7]There was then some discussion about submissions. I expressed concern that the impact of Mr Wood’s submission, that the COT3, the relevant part of which said that there was full and final settlement of all claims arising in case number 240 7182/21 and any claims arising out of or in connection with the claimant’s employment or termination thereof or from events occurring after this settlement has been entered into Case No: 2400001/24 3 would be that effectively GMP would have a “get out of jail free card” and be able to act in a way that denied the claimant statutory employment law protections. I explained that this is about the ability of a COT3 to settle future claims and invited comment on the fact that Mr Fung’s case was one of ongoing employment whereas the relevant authorities to which I had been directed appeared to be termination of employment cases. Mr Wood confirmed that that is the effect of the agreement and referred me again to the authority of Howard.[8]Mr Wood’s submission is that the claimant is bound by the actual and, in the alternative, ostensible authority of the solicitor, and that the objective interpretation of the wording of the COT3 is such that the claimant is precluded from bringing the complaints in his present proceedings, which must therefore be struck out.[9]Mr Fung’s submission is that he had not agreed to sign away all his future statutory employment law protection, that no one could think he had agreed to that, that his lawyer cannot have been acting in good faith and had misrepresented the position to him that if that was what it meant then he should not be bound by that COT3 agreement, that the new acts he complains of are separate and different from the complaint about promotion in respect of which he entered a settlement, that they relate to new complaints.[10]I adjourned to make my decision.[11]I am very grateful to Mr Wood for setting out the relevant law. In particular, Bank of Credit and Commerce International SA v Ali and ors 2001 ICR 337, HL Royal National Orthopaedic Hospital Trust v Howard 2002 IRLR 849, EAT.[12]I also referred the parties to an authority Arvunescu v Quick Release (Automotive) Ltd 2023 ICR 271, CA[13]My further reading has taken me to a recent decision of the EAT in Clifford v IBM UK Limited [2024] EAT 90 which revisits all the relevant authorities in this area including those cited by Mr Wood and referred to by me.[14]The starting point in considering settlement agreements in COT3 and their ability to settle future claims is the contractual position and this was summarised by Lord Bingham in Ali; a party may agree to release claims or rights of which he is unaware and of which he could not be aware, even claims which could not on the facts known to the parties have been imagined if appropriate language is used to make plain that is his intention…but… in the absence of clear language the court will be very slow to infer that a party intended to surrender rights and claims which he was unaware and could not have been aware.[15]In Howard Judge Reid said the law does not decline to allow parties to contract that all and any claims whether known or not shall be released. The question is whether or objectively looking at the compromise agreement that was the intention of the parties. If the parties seek to achieve such an extravagant result Case No: 2400001/24 4 that they release claims of which they have and can have no knowledge whether those claims have already come into existence or not they must do so in language is absolutely clear and leaves no room for doubt………we can see no reason why is a matter of public policy a party should not contract out of some future course of action.[16]Clifford reminds me that the statutory position is that freedom to reach agreement in settlement of employment law rights is modified in relation to claims brought under the Equality Act by sections 144 and section 147. Similar provisions appear in the Employment Rights Act 1996. Section 144 Equality Act 2010 provides that a term of the contract is unenforceable by a person in whose favour it would operate insofar as it purports to exclude or limit a provision of or made under the Equality Act 2010. Section 44 provides a carveout from that provision by stating that it does not apply to a contract which settles a complaint within section 120 if that settlement contract is a qualifying settlement agreement. The prerequisite conditions for the existence of a qualifying settlement agreement are set out in section 147 EQA which provides A qualifying settlement agreement is a contract in relation to which each of the conditions in subsection (3) is met[17]Those conditions include the contract relates to the particular complaint[18]This “particular complaint” prerequisite condition to being able to settle future claims is at the heart of my decision in this case today. The particular complaint that was being conciliated at the time the COT3 was entered into on 21 November 2022 were(i) those complaints contained within claim number 2407182/21 and(ii) the factual matters that had arisen prior to that COT3 including the alleged victimisation detriments referred to in the present proceedings and described by the claimant as punishments P1, P2 and P3[19]I therefore find that the claimant is precluded from bringing a complaint about Alleged victimisation detriment 1 “punishment 1” (P1) the report to the professional standards department by Chief Inspector Mark Warner on or around 22 June 2022 alleged victimisation detriment 2 “punishment 2” (P2) the respondent demoting him to Constable in June 2022 Alleged victimisation detriment 3 “punishment 3” (P3) the respondent failing to appoint him as permanent sergeant and retaining him as temporary sergeant until July 2023 including the loss of pay at the rate of a sergeant until December 2022 Case No: 2400001/24 5 because those matters formed part of the particular complaint that was being conciliated by ACAS at the time of the COT3.[20]Those matters fall within the definition of particular complaint and are therefore part of the qualifying settlement agreement and on objective interpretation of the COT3 fall within the matters that are settled.[21]Applying the same law to P4 and P5 in the present proceedings I find alleged victimisation detriment 4 “punishment 4” (P4) on 30 August 2023 the claimant being given a final written warning for misconduct by Darren Whitehead and alleged victimisation detriment 5 “punishment 5” (P5) being suspended from duty by Deputy Chief Constable Terry Woods on 7 October 2023 fall outside of the definition of particular complaint at the time of the COT3, because they had not yet arisen, and did not arise from the facts at that time and relate instead to new and separate matters. I accept the claimant’s submission that the detriments at P4 and P5 were new and different and separate from the complaints about failure to promote. They were not capable of being compromised in a qualifying settlement agreement on 21 November 2022.[22]The claimant is not precluded from bringing a complaint in respect of those alleged detriments at P4 and P5. Those complaints proceed to hearing.[23]On the authority point I accept in full the submission of the respondent that the solicitors entering the COT3 for the claimant acted with actual and ostensible authority and that the claimant is bound by that compromise agreement insofar as it precludes him from bringing complaints P1 P2 and P3.