Mr N Schofield v Bolton Textiles (Group) Ltd and others: 2414841/2018
EMPLOYMENT TRIBUNALS
Case No 2414841/2018
Between
Mr N SchofieldClaimantBolton Textiles (Group) Ltd and othersRespondent
Before
Employment Judge SherrattMr M Ferron (instructed by Advocate) for claimantMr R Morton (instructed by Solicitor) for respondentDate 24 February 2021
JUDGMENT
[1]The correct identity of the first respondent is Bolton Textiles (Group) Limited, company registered number 10717887.[2]Joshua Dawson shall be added as the second respondent but only for the purposes of the claimant's claims under the Equality Act 2010.[3]Philip Andrew Dawson shall be added as the third respondent but only for the purposes of the claimant’s claims under the Equality Act 2010.[4]The company is permitted to serve an amended response and the individual respondents shall serve their responses to the claimant’s claims by 22 March 2019.
REASONS
The Law
[1]At a preliminary hearing the claimant has applied to add two individuals as parties in the form of respondents to his claim against a limited company. The Employment Tribunals Rules of Procedure 2013 at rule 34 provide that the Tribunal may, on its own initiative or on the application of a party, add any person as a party by way of substitution or otherwise if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings, and may also remove any party apparently wrongly included.[2]As to the issues between the parties, the claims are brought under the Equality Act 2010 as well as the Employment Rights Act 1996. The Equality Act at section 109 provides that: “Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer.” By this section the Equality Act makes provision for claims to be brought against individuals as well as employers.[3]The claimant applies to add as parties the sole director of the respondent company and one employee, alleging that the employee in particular was responsible for a grievance and possibly dismissing the claimant and that the director was also responsible for those acts.[4]It is apparent from papers put before me in the bundle that the claimant started work in 2007 working for J H Cunliffe & Co Limited, and after working for an intermediate company he came to be employed by this respondent with the two earlier companies having become insolvent. The company most recently employing the claimant was incorporated on 10 April 2017, and from a look at Companies House as at today’s date its accounts are overdue. The claimant is concerned that if the company respondent goes into insolvency then his claims will be worthless.[5]Both the potential new respondents are named in the narrative particulars attached to the ET1 but they were not named on Early Conciliation certificates and they were not made parties when the case was commenced.[6]The respondent argues that it would be unfair on the two individuals to be made respondents as it goes behind the corporate veil; it would give the claimant an advantage over other creditors if the respondent did become insolvent. It is submitted that the claims against the individuals are out of time and that there was no blameworthy conduct on their part. It would be disproportionate to add them; there has not been compliance with the early conciliation procedure and there would be prejudice to the two people who should be protected by the limited company corporate structure which employs the claimant.[7]The President of the Employment Tribunals in England and Wales has issued Presidential Guidance on General Case Management (2018), and there is a section on adding or removing parties. At 16.2 one of the circumstances that might give rise to parties being added is where individual respondents other than the employer are named in discrimination cases on the grounds that they have discriminated against the client and an award is sought against them.[8]Paragraph 17 states that asking to add a party is an application to amend the claim. The Tribunal will have to consider the type of amendment sought. The amendment may deal with a clerical error, add factual details to existing allegations or add new labels to facts already set out in the claim. The amendment may, if allowed, make new factual allegations which change or add to an existing claim. The consideration set out above in relation to amendments generally apply to these applications. The provisions for amendments generally relate to adding different claims or making amendments to the form in which the claim is made.[9]Looking at the application before me, the two parties now sought to be added are named in the ET1 and the claimant does not seek to add anything further by way of allegations against them than is made in the ET1.[10]As to time limits, the claimant when he went through the early conciliation procedure was, I am told, acting alone; at the time the ET1 was put in it was professionally drafted; the two potential additional respondents were named but there was no early conciliation certificate and they were not included as parties.[11]The claimant’s effective date of termination of employment was 29 March 2018. EC notification to ACAS was on 27 June and the Certificate was issued on 27 July. The ET1 was received on 25 August and the application to amend to add the further respondents was made by email on 27 August 2018. The application was therefore made one day after the expiry of the limitation period allowing for Early Conciliation.[12]Early Conciliation certificates are not required where a party is added by way of amendment. The application was made without significant delay and certainly before the prospective respondents could argue that the delay has prejudiced them due to documentary evidence or witnesses no longer being available.[13]The two further respondents could have been made respondents from the outset had Early Conciliation certificates been obtained for them and had they been entered as respondents on the ET1.[14]In dealing with this application the Tribunal has to consider the balance of prejudice between the parties.[15]From the perspective of the claimant if the corporate respondent falls into insolvency then the claimant will have no remedy in respect of his Equality Act claims. If the two individuals are added as respondents and the respondent company goes into insolvency the claimant will have the possibility of a remedy against them. If the company remains solvent the two individuals will no doubt be indemnified by the company against any award that the Tribunal may make against them.[16]As to the two prospective respondents they will be prejudiced if the claimant’s Equality Act claims succeed as against them and if there is no corporate respondent to indemnify them. Whether they have committed any blameworthy conduct is a matter of evidence but it would appear that they were responsible for the claimant’s dismissal which he alleges was discriminatory.[17]Given the insolvency history of the two companies previously employing the claimant and the relatively recent incorporation of the respondent company, it seems to me that the balance of prejudice favours protecting the claimant rather than a director and an employee of the respondent company, thus potentially allowing the claimant more possibility of obtaining a remedy if his Equality Act claim succeeds. I therefore add the two named individuals as the second and third respondents.[18]The claim is the same therefore it does not seem to me that there is a need to serve specifically the second and third respondents, but the first respondent must be allowed to amend its response and the second and third respondents must be allowed to put in their own individual responses to the claimant’s claims. As 28 days are allowed for that it seems to me that that takes us to 22 March 2019, which will be the date for the respondents to provide their responses.[1]The claimant presented a claim of unfair dismissal, disability discrimination and wrongful dismissal on 25 August 2018. The claimant claims that he was disabled due to Osteoporosis of the hip and the spine and Hip Dysplasia and that the respondent was aware that he was having considerable difficulties at work undertaking his normal job, that he asked for amended duties and the respondent consequently dismissed him saying there were no amended duties available.[2]The respondent stated that the claimant was dismissed following his refusal to have an Occupational Health assessment, stating that he did not want his job back, for his continued refusal to work as directed and his ever-changing medical conditions to suit. They stated they were not aware that the claimant had a disability and believed they had followed a reasonable procedure.[3]Jurisdictional issues were raised by the respondent, some of which were considered at a previous Preliminary Hearing. However, the issue for this Preliminary Hearing was whether the claimant could not pursue his claims because there was a pre-existing Settlement Agreement which was binding. This was first raised by an amended response form, submitted on 7 May 2019, the original response form was received on 11 October 2018.[4]It has been explained by the solicitor (not in evidence) that he only became aware of what he regards as a concluded settlement when he received the paperwork from the respondent.
Issues
[5]Was there a binding settlement ousting the jurisdiction of the Tribunal?[6]If so, was the claimant’s disability discrimination claim excluded by that agreement? Witnesses[7]For the claimant I heard from Mr Ramji, his solicitor, and for the respondent from Mr Philip Dawson, a Consultant, and Mr Joshua Dawson, Director of the respondent.
The Law
[8]Under Section 203(1) of the Employment Rights Act 1996 and similar equivalent provisions in the Equality Act, individuals cannot contract out of their statutory employment rights except via a COT3 with ACAS or via a Settlement Agreement previously referred to as Compromise Agreement.[9]Settlement Agreements allow parties to settle an employment dispute for themselves before or after Tribunal proceedings have been instituted. A properly constituted settlement agreement will bar the employee from taking a claim further. There are some claims that cannot be compromised in this way in any event but they do not concern us here. The statutory requirements for a legally binding Settlement Agreements are that the agreement must :(i) Be in writing;(ii) Relate to the particular proceedings;(iii) Only be made where the employee or worker has received advice from a relevant independent advisor as to the terms and effect of the proposed agreement and in particular its effect on his or her ability to pursue his or her rights before an Employment Tribunal.(iv) Identify the relevant independent advisor;(v) State that the conditions regulating Settlement Agreements have been satisfied.[10]Issues arise regarding at what point the settlement becomes binding and its relevant to consider here the terminology “subject to contract”. The leading case on this highlighted that any proposed settlement offer should expressly be made subject to contract to enable the parties to continue to negotiate until all terms have been finalised otherwise the oral agreement will be binding[11]In Newbury -v- Sun Microsystems 2013 an issue arose in proceeding against SM for unpaid commission in the sum of approximately two million and SM counter claimed for overpayments. SM’s solicitors on the eve of the court hearing wrote to N’s solicitors making a final settlement offer of £601,000 approximately in full and final settlement of the claim and counter claim plus legal costs. The letter making the offer further provided the settlement was to be recorded in a suitably worded agreement and was open until 5:30. The claimant’s solicitors accepted the terms of the offer and went on to state they would forward a draft agreement for approval. When SM subsequently tried to insert new terms relating to other matters N applied for a declaration in the High Court that the proceedings between SM had been settled on the terms set out in correspondence between the respective solicitors. The High Court decided that the correspondence showed that there was an intention to create legal relations and that the parties had agreed all the terms which they regarded as essential for the formation of a legally binding contract. The fact the offer was to be recorded in a suitably worded agreement did not mean that a binding agreement had not been reached. This was particularly in view of the fact that an eight-day trial was due to imminently start. Neither was the initial offer expressly subject to contract.[12]However, if offers are not expressly subject to contract and therefore there is presumed intention to conclude a binding contract even though a formal document recording the terms agreed has not yet been executed, this does not operate to settle anything other than contractual claims in order for the parties to settle any statutory claim the employer may have it is necessary that the conditions in Section 203 or equivalent statute in other legislation have been complied with. However those conditions are set out above and therefore a completely separate clause for e.g. a non disclosure clause would be introducing something in new if not included in the original discussions whether written or oral.[13]The other matter affecting the binding nature of any settlement is the issue of particular proceedings. Section 203(3)(b) of the Employment Rights Act 1996 says that Settlement Agreements must “relate to the particular proceedings”. This does not require separate agreements, one Settlement Agreement is capable of settling all the matters and disputes between the parties, Lunt -v- Merseyside Tech Limited 1999 EAT.[14]In Hinton -v- University of East London 2005 the Court of Appeal took the view that although there was a general claim stating that the agreement was in full and final settlement of all claims in all jurisdictions whether arising under statute, common law or otherwise which the employee has or may have against the University arising out of or in connection with an employment with the University, the termination of his employment or otherwise, and also including a lengthy list of possible claims to be settled, even though the claimant had not raised most of them, the list however did not include claims under Section 47(B) regarding suffering a detriment because of making a protected disclosure. The claimant brought Tribunal proceedings on the basis of these alleged detriments, the Tribunal held a Settlement Agreement did not prevent H from bringing these proceedings because it did not specifically cover them. The EAT allowed the employer’s appeal, the Court of Appeal however stated that contractually the Settlement Agreement was wide enough to cover the Section 47B claim but turning to Section 203 it was said it was not sufficient for a Settlement Agreement to use a rolled-up expression such as all statutory rights, nor even to identify proceedings only by reference to the statute under which they arose. In H’s case although from a contractual point of view the wording of the agreement was wide enough to cover his potential Section 47B claim the agreement had not specifically referred to Section 47B and thus did not relate to particular proceedings within the meaning of Section 203(3)(b), H could therefore proceed with his claim.[15]In McWilliam and Others -v- Glasgow City Council 2011 EAT, the EAT made it clear the legislation does not require the complaint to have been articulated by the employee at some earlier stage before it can be effectively settled. What matters is that both parties know to which particular complaint the Settlement Agreement relates. It does not matter whether there has been a history of communication or dialogue about the particular complaint or complaints, and that a complaint was wide enough to include circumstances where there is nothing more than an expression of dissatisfaction about something.[16]Further in this case the agreement itself required both parties to sign it in order to come out of “without prejudice” and “subject to contract” mode.[17]If there is a binding settlement and the respondent fails to honour any payment under that settlement the claimant can pursue the matter in the County Court or in the Tribunal if it meets the criteria of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.
Findings of Fact
[18]There were difficulties with the claimant’s employment and he provided the respondent with a letter from his doctor of 9 March which stated: “I confirm that he has an ongoing history of RT hip and groin pains and is under the care of North Manchester Hospital team. He awaits an appointment with their pain team, in the meantime he is on strong painkillers. He tells me his work as a Textile Cutter could involve climbing onto tables and keeping his hip bent. I have suggested his pains could worsen with these movements and activities and he is better off avoiding lifting activities too. He could benefit from amended duties and activities at his work place, hence his letter to whom it may concern.”[19]Mr P. Dawson had replied in an undated letter which the claimant received on his return to work from holiday on 26 March 2018: “Dear Neil With regards to your letter dated 9 March it is with regret that we are unable to continue to employ you. Whilst we have tried to accommodate your physical needs we don’t have a position in the company that will allow us to deploy your skills in another role. There have been various discussions in the business regarding your health and as confirmed by a letter written on 9 March 2018 by Dr Pradeep Note this this does stop you fulfilling your role as a cutter. We are unable to offer amended duties and will not be able to guarantee you work on other roles, we are therefore left with no option than to cease employment with the group. I believe you have one weeks’ notice period and in this time, you should take any outstanding holiday.”[20]Subsequently an agreement was reached whereby the respondent agreed to pay a termination payment of £1,778.40 to the claimant having dismissed him as described above. The respondent provided the claimant with a Settlement Agreement. Whilst it has been suggested the respondent was unrepresented and therefore at a disadvantage, they must have obtained this Agreement from somewhere, either at the time from their solicitors or it was an agreement obtained in previous proceedings, and further as can be seen from subsequent correspondence the respondent constantly refer to their legal advisers, therefore even if not “on the record” they were not acting without advice. I mention this as it has been suggested by the respondent that Mr Ramji was acting in an unethical way when he allowed a Settlement Agreement to be used that did not include disability discrimination.[21]The claimant went to Premier Advocates in order to obtain the advice necessary to ensure a section 203 Settlement Agreement was valid.[22]Mr Ramji of Premier Advocates acted for the claimant and wrote to Mr P Dawson by email on 18 May 2018 headed “Settlement Agreement” and “without prejudice” stating: “We are instructed by Mr Neil Schofield in respect of the Settlement Agreement, would you kindly note our interest in the matter. In order to advise him fully and give him further advice may we ask how you have arrived at or calculated the termination figure of £1,778.40 please as he is unhappy with the amount. We understand that his job is no longer there and the reason for termination was on the grounds of redundancy. Mr Schofield had eleven years’ service with your company so on the face of it would be entitled to eleven weeks’ notice pay under Section 86 of the Employment Rights Act 1996 together with a redundancy payment which would be 1 or 1 ½ weeks’ pay for each completed year of service. He would be entitled to notice of eleven weeks regardless. Would you be kind enough to clarify the above points so we may advise Mr Schofield further in the matter.”[23]Mr Dawson replied “without prejudice”: “Mr Schofield was not dismissed on the grounds of redundancy, his job is still live, I don’t believe your client is being totally honest with you. Once you have spoken to your client again please let me know so we can forward you to our solicitors.”[24]There was a further email from Mr Ramji saying, “could you let us have the information requested as to the reasons for termination, Mr Schofield would still be entitled to eleven weeks’ notice plus outstanding would he not.”[25]Mr Dawson replied again on 18 May: “I suggest you clarify with Mr Schofield and then lay out your position so we can pass on to our solicitors. For the benefit of yourself Mr Schofield was originally offered one week which was increased to four then both parties agreed on six. Not sure what has changed with your client therefore our offer at this stage is withdrawn.”[26]It is not clear what happened in between but on 21 May 2018 Mr Dawson wrote to Mr Ramji stating: “Please can you tell me what your fee will be for representing your client so we can do an overall cost benefit for Neil.”[27]On 24 May Mr Ramji replied: “We were referred to the above matter and your recent communication, you must have clearly noted what we stated in our email communication regarding the entitlement in law for Mr Schofield. As his lawyers it would be our job to act in his best interests, however Mr Schofield has confirmed to us that he wishes to accept the offer made in accordance with the proposed Settlement Agreement if this is still on the table, perhaps you could confirm. As he wishes to accept we trust you will re-instate so the matter can be settled amicably as soon as possible.”[28]Mr Dawson replied saying, “Please confirm once signed and we will start the fee transaction”.[29]On 25 an Assistant at Premier Advocates advised that they would be contacting Mr Schofield for his signature and would forward the documentation once they had it back from him. An invoice for £250 for Mr Ramji’s fees was also included.[30]On 31 May Premier Advocates wrote to the respondents saying: “I have attached a copy of the Settlement Agreement in respect of the above duly signed by Neil Schofield as requested. I have also attached our invoice of our legal charges. Please can you confirm receipt and provide the address to post the two original copies and we would be obliged if you could send a completed signed copy back to Mr Schofield for his records.”[31]What seemed to happen then was the address provided was actually an address no longer being used by the respondent, Royal Mail could not affect delivery and left a card requiring the recipient to re-arrange the delivery or collect from the Post Office. The respondent did neither.[32]On 18 June Premier Advocates wrote again to Mr Dawson saying: “Following on from your receipt of the attached Settlement Agreement by email and by post tracking number XXX could you please confirm to Mr Schofield when he can expect payment, our legal charges invoice attached are also outstanding if you could please advise when payment will be received on this.”[33]On 18 June there was a rather terse reply from Philip Dawson, “I have not received the original documents. Regards.”[34]The reply from Premier Advocates the same day was: “Thank you for your email I have tracked the original documents, Royal Mail tracking shows that they attempted to deliver this to you on 4 June at 12.11pm but there was no answer and a card was left advising you to either collect the package or re-arrange delivery. I have arranged online with Royal Mail for this to be re-delivered to you on Wednesday 20 June 2018, could you please confirm receipt.”[35]In any event Premier Advocates arranged re-delivery to the respondent on Wednesday 20 June 2018 and on 27 June stated that: “We have sent the signed papers off to you by way of Recorded Delivery service on 31 May 2018 but have today been returned to us uncollected. Having spoken to you we are resending them to the above address, Bolton Textiles Group, Duke Street Mill, Rochdale, OL12 OLW which you gave us over the telephone. We hope that this matter can be sorted soon, as a precaution in the event for whatever reason it is not resolved then we have advised Mr Schofield in any event to lodge his application for early conciliation with ACAS, then to issue Tribunal process. We hope the above will not be necessary and the matter can be resolved amicably.”[36]On 4 July Mr Ramji had cause to write again: “Further to the above we refer to our client’s matter and the proposed Settlement Agreement, we are not sure exactly what the position is, for the record the signed agreements were sent out to you – again – by first class post with a posting receipt obtained from West Bridgford Post Office on 28 June. Please confirm receipt and to confirm the dates payment will be made to Mr Schofield and also the date you will discharge our legal costs. Whilst writing would you kindly note, and we wish to advise you upon our advice Mr Schofield has lodged an early conciliation application with ACAS under reference number xxx, this was a precautionary step to ensure compliance with the law and as soon as the matter has been fully resolved the early conciliation will be withdrawn. Please confirm your exact position. Thanks.”[37]Mr Dawson replied on 4 July: “Please send copy of the conciliation paperwork, once received we will respond to your email in full. For the record I am on holiday.”[38]Premier Advocates replied: “Thank you for your email. With respect we are seeking to resolve a proposed Settlement Agreement as soon as possible for the benefit of our client, for your information we are not able to send you copies of the conciliation paperwork as the process is through ACAS. We have provided you with the reference number, please feel free to contact ACAS. The fact that you are on holiday is not our concern, would you, your company or the designated person dealing with this matter please kindly respond immediately to the substantive enquiry in our email. For the record, should the matter not proceed to conclusion swiftly, and should this matter go to an Employment Tribunal please be advised we will make a claim for our legal costs on a full indemnity basis, Premier Advocates hourly rates are £195 an hour.”[39]Mr Dawson then replied: “I am not bothered that you are not concerned about my holiday, when I get back I will check the post and will ask ACAS to provide a copy, when I have a copy I will send you a full response as previously stated. Please remember that it is you that has gone to ACAS not us so if this delays things we cannot accept any responsibility or cost. For your records I have checked with the office and the letter arrived yesterday, you will also note that until we sign the original the 21 days has not started, however we are reasonable people and will look at this as a matter of urgency but please don’t play games as I don’t like that.”[40]Mr Josh Dawson then replied the same date: “Mr Ramji, I have contacted your office today and believe you are with a client, following on from some emails I have been forwarded I would like to make our position clear, we received your letter in the post Monday 2 July 2018, I will review the document and was looking to forward back to you tomorrow via email and a copy in the post, however, since then you have lodged an ACAS reconciliation and we will now seek the advice of Avensure who deal with all our HR matters before forwarding. I must point out to you clause 2.3 that states ‘payment will be made within 21 days of the employer receiving a copy of the agreement’. I have confirmed receipt of this now, this means we are up to 23 July 2018 to pay your client. I am therefore unsure as to why you have filed for early reconciliation, maybe because you think your scanned email was suitable, unfortunately it was not as approximately 1/3rd of each page is unreadable and therefore was unable to be accepted as a copy. Maybe your photocopier has a fault. Thank you for advising me off your costs, mine are £500 per hour for the record.”[41]Mr Ramji replied in a very dignified way to what was a somewhat confused and sarcastic email from Mr Dawson unnecessarily so as follows: “Further to your communication our position is that you need to sign the documentation, send a fully signed copy to us, make a payment to Mr Schofield in accordance with the Settlement Agreement and to discharge our legal costs and the matter can then be concluded, provided that you have done the above ACAS can for the moment be parked on one side as long as the settlement is completed as above.”[42]This was in response to an email on 5 July from Mr Dawson saying, “so I am clear the payment is due before 23 July 2018, so long as this is the case the ACAS case will not progress”.[43]Mr Ramji confirmed that was correct.[44]Mr Dawson then replied; “thank you I will arrange as early as possible to try and close the case” and again Premier Advocates replied: “Very good, could you forward one signed copy of the Settlement Agreement to us by the post today please. Our charges need to be paid and the payment details are on the invoice.”[45]It might have been thought at this stage that all was sorted out and a signed copy would duly arrive the next day at Premier Advocates office.[46]The respondent stated that the agreement was signed shortly after it was received on 3 July 2018 and Mr Joshua Dawson gave evidence that he signed it on 4 July and produced a copy which as will be seen later Mr Ramji was not certain was the same copy he had sent to the respondent. However, Mr Joshua Dawson could not advise as to what had happened to that signed copy afterwards, certainly it was not sent to the claimant, neither was there are reference whatsoever in any of the subsequent correspondence regarding this signed copy.[47]On 26 July ACAS advised Mr Ramji as follows: “I have spoken to the respondent Joshua Dawson regarding the case and his current position is that he is intending to pay the £1,778.40 tomorrow as long as Mr Schofield agrees not to pursue the claim any further. He stated that Neil had sent the signed Settlement Agreement to the wrong address and that this is why they did not pick it up. I have just left you a voicemail and was hoping to get your perspective on this as I am aware there may not be a huge deal of trust between the parties at this stage.”[48]There was no payment the next day.[49]On 30 July Mr Dawson wrote to Premier Advocates beginning Dear Credit Control in response to an automatic reminder about the fee: “We had a call from ACAS last week about your client stating he wishes to take things further therefore until this is resolved we are obviously in dispute, I suggest you get the funds from your client who has ignored the signed contract thus it seems like he has decided to go further.”[50]The respondent gave evidence that they had spoken to ACAS and ACAS had told them not to pay the money until they had made further enquiries and then ACAS had never got back to them. Accordingly, they did not pay the money. There was no evidence from ACAS. I do not find this credible as from my knowledge they would not interfere in the party’s dealings to this extent. Whilst the respondent has since argued their dealings with ACAS should be confidential there was no objection at the time of the hearings to the inclusion of emails in relation to ACAS being in the bundle nor to Messrs Dawson being cross examined about it. Accordingly, any privilege was clearly waived.[51]On 1 August Premier Advocates wrote to Mr Dawson again: “We refer to your email of Monday 30 July, we wish to formally record with you the following:-(i) It is palpably clear from the way you have conducted communications with the contents of your communications that you have had no intention to conclude matters by way of agreement that is clear;(ii) The ACAS Conciliation Officer Andrew Smith would not have indicated as stated below, we simply do not accept what you say, you had a signed document from our client indicating that he did wish to settle but you have failed to understand that;(iii) Please be advised and take formal notice that you have failed to act reasonably, you have failed to comply with the terms of proposed Settlement Agreement within the timescales that Mr Schofield cancels and hereby withdraws from the said proposed agreement which as far as he is concerned is revoked”.[52]Mr Joshua Dawson replied the same day: “Your client broke the agreement by going to ACAS shortly after signing the agreement.”[53]A further response from Phil Dawson on 1 August said: “In communications with yourself you stated you had started an ACAS claim then when we questioned this you stated it had been stopped. Clearly it is you who has no intention of honouring the agreement. You sent the agreement via recorded delivery and it never arrived then you clearly attacked us for not following the agreement, you did then receive it back. When we finally received the agreement, you proceeded to threaten us but actually you hadn’t read the agreement when you realised this you again backed off. Our agreement was to pay as per the agreement, you clearly didn’t have the same intention, we told ACAS we would wait for him to return back to us before we proceeded, as far as I am aware we are still waiting for this. I think it was you acting on behalf of your client who has not followed the agreement. We still await a response from ACAS”.[54]The next communication from the respondent was 30 August 2018: “Dear Sir We are in receipt of the attached letter, we would request details of the Tribunal case and the address to which we shall send our correspondence. We object to a number of your claims in the letter and state now that you have again not done your research or fully understood what your client is telling you. When we receive your claim, we will defend our position separately as I believe from my perspective you are making statements which are slanderous and complete fiction. For the record you should check the spelling and English before sending out letters. We also state that for the record we are still waiting for ACAS to come back to us so to say we have not engaged is incorrect. We are also not aware that your client is disabled, please can you provide further detail, when we asked your client to have an occupational health check he declined stating he just wanted to finish and go on full disability, as his son in law had been given this even though your client didn’t think the son in law was worse than him, when asked what his disability was he said the doctor wouldn’t give him one. We would suggest that our offer which you rejected and whilst signing started an ACAS claim, given your client’s position. … We would state again for record we believe our offer was fair and this would still be the situation if you so wished.”[55]There was then some correspondence about settling the matter again in October. On 16 October was a further offer on the table. However, an email of November 23 from ACAS stated that offer was also withdrawn and the respondent was now back to the original £1,700 as a proposal. These attempts to settle the matter fizzled out.[56]The details of the original Settlement Agreement included the following clauses that are relevant: “2.3 The termination payment will be paid to the employee within 21 days of the termination date, or receipt by the employer of a copy of this agreement, signed by the employee including the certificate signed by the employee’s adviser as set out a Schedule two whichever is later. 4. Waiver 4.1 The terms of this agreement are offered by the employer without any admission of liability and are in full and final settlement of all and any claims or rights of action that the employee has or may have arising out of his employment with the employer, or its termination whether under common law, contract, statute or otherwise, whether or not such claims are or could be known to the parties or in their contemplation the date of this agreement in any jurisdiction and including, but not limited to the claims specified in Schedule 1 (each of which is intimated and waived) but excluding any claims by the employee to enforce this agreement, any personal injuries claims which have not arisen as at the date of this agreement and any existing personal injury claims or any claims in relation to accrued pension entitlements.”[57]There was also in addition to the financial settlement an agreed reference. There were provisions about the parties’ not criticising each other.[58]At paragraph 12 it says: “Subject to contract and without prejudice this agreement shall be deemed to be without prejudice and subject to contracts until such time as it is signed by both parties and dated, when it shall be treated as an open document evidencing a binding agreement”.[59]Then, in relation to the Schedule 1 claims breach of contract and unfair dismissal was referred to. However, there was no reference to any disability discrimination claims, strangely there was reference to discrimination, harassment, victimisation claims relating to age, part time status, reference to information consultation provisions and lots of other types of claims amounting to over thirty references in all.[60]The respondent had in these proceedings produced a copy of the original Settlement Agreement which they submitted was signed on 4 July by Mr Joshua Dawson.[61]Mr Ramji pointed out some differences between that copy and the one he sent to them, in terms as follows:(i) The claimant’s signature on the original copy compared to the respondent’s new copy looked different;(ii) The reference in the original copy compared to the respondent’s copy was different, somebody had made amendments;(iii) The Premier Advocates address in the original copy was different from that in the respondent’s new copy;(iv) Finally, that his own signature in the original copy was not the same as the new copy.”[62]The respondent believed this was down to photocopying although they could not explain why it would be different, the difference being quite significant in that in the respondent’s copy ‘NOT’ (presumably for Nottingham) was included before the postcode.[63]Of course, this could be explained by the copy held on file by the claimant’s solicitor being different from that actually sent to the respondent, however, this seems unlikely as everything was signed on 29 May and simply re-sent to the respondent when it remained uncollected. On the other hand, it would be reasonable to amend the reference although not unilaterally. It would also be bad practice for the claimant’s solicitor to amend and then keep an unamended copy on file. I found Mr Ramji a measured and knowledgeable witness and so doubted on the balance of probabilities that he did this. Of course, the respondent would have a blank copy of the agreement anyway as this had been provided by them to the claimant. Claimant's Submissions[64]The claimant submitted the Agreement was not binding as it had never been signed nor returned to the claimant. Further, in the light of the respondent’s behaviour the claimant revoked the agreement that the way that the respondent behaved was completely unfair and prejudicial to the claimant: offering a settlement, withdrawing the settlement, offering it again, not answering correspondence, seeking to renegotiate the settlement, never mentioned that they had signed it.[65]The claimant submitted that the respondent could not have signed it as there was correspondence on the actual date of the alleged signature and nothing was mentioned, neither had it been mentioned at all in subsequent correspondence, nor could the respondent even say that it had been sent back to the claimant. The claimant stated it was in the interests of the overriding objective that the settlement not be regarded as binding. The fact that the respondent failed to include disability discrimination in the list of claims to be settled enabled the claimant to pursue that claim irrespective of the position in respect of unfair dismissal, etc. Respondent’s Submissions[66]The respondent submitted that the case in Newbury meant that there was a meeting of minds and an agreement and there was no requirement for any subsequent conditions in writing which would alter that agreement. It was irrelevant whether the settlement and the respondent’s behaviour was prejudicial or unfair to the claimant or contrary to the overriding objective, indeed the overriding objective was irrelevant. There were legal principles to apply.[67]The respondent submitted it was a legally binding agreement. In respect of the disability discrimination the respondent had no knowledge of such action at the time the settlement was agreed and suggested that if there was a known DDA claim the solicitor for the claimant was acting in breach of his ethical duty to allow an unrepresented party to agree to a settlement which did not include disability discrimination in order that this could be pursued after the settlement monies were paid. Comments on Submissions[68]The respondent is correct that the claimant could not revoke a binding agreement, neither is the overriding objective unfair behaviour or prejudice of any relevance.[69]In respect of the respondent’s submissions I would comment that:(1) The respondent always gave the impression they were being legally advised throughout, a position apparently substantiated by the provision of a legalistic Settlement Agreement being provided to the claimant.(2) No evidence was put regarding Mr Ramji’s actions being unfair because the respondent was unrepresented, or even that his actions were deliberate in order to obtain the Settlement Agreement and then issue proceedings for disability discrimination.(3) In fact such a scenario was highly unlikely as from the correspondence it was clear that Mr Ramji was at all times anxious to obtain the settlement monies and his professional fee. Conclusions Was the agreement signed[70]I have to make some findings of fact. I considered whether I needed to find as a fact if the signed agreement produced by the respondent was genuinely the one sent to them – potentially it may assist in deciding the more crucial 4 July issue.[71]I need to decide if the respondent had signed that agreement on 4 July 2018[72]I find that the respondent did not sign that agreement on 4 July. I did not find the respondent’s witnesses credible. In part because their dealings with the claimant and his solicitor they showed bad faith by replying to quite proper correspondence in an intemperate and sarcastic way.[73]There was evidence Mr P Dawson had dealt with Tribunal claims before, it was disingenuous of his to act as if oblivious to the point that the claimant would have to “get the ball rolling” regarding his claim if the matter was not done and dusted within what are strict time limits. I would not go so far as to suggest they respondent were acting deliberately in the hope the claimant would miss his time limits.[74]I find that they were disingenuous also about the address provided from correspondence and in their failure to make any effort to find the original signed Settlement Agreement.[75]I find it unbelievable that if Mr J Dawson signed the agreement on 4 July he would not know what happened to it thereafter.[76]In addition, it is not credible that he would have signed it on 4 July and then not mentioned on the 4 July whilst in contemporaneous correspondence with the claimant’s solicitor and subsequently; and then continue to negotiate a settlement.[77]Further the discrepancies between the two documents suggest the copy produced by the respondent was not genuine. Was the agreement binding[78]Firstly, in the Employment Tribunal the Tribunal’s jurisdiction is only ousted by an agreement compliant with section 203. In particular the agreement has to be in writing, accordingly Newbury’s effect is limited as a purely oral agreement cannot oust thetribunal’s jurisdiction. Further the agreement itself says that it remains without prejudice and subject to contract until both parties have signed it.[79]Accordingly, as I have found that it was not signed on 4 July as contended by the respondent, it was not binding as a contractual term to the effect that both parties had to sign and date the agreement before it became contractually binding had been introduced by the written agreement.[80]If I am wrong regarding the effect of section 203 and the oral agreement was ostensibly binding the respondent then introduced a new provision in respect of paragraph 12 which the claimant agreed to by signing the agreement. In Newbury the claimant did not agree to new provisions introduced following the agreement and he was entitled to rely on the original oral agreement – here however the claimant acquiesced in the introduction of a number of new terms which there was no evidence had ever been discussed including paragraph 12. Again, because paragraph 12 was not adhered to the agreement cannot be binding, Did the agreement cover a disability discrimination claim?[81]The list of claims which the agreement was supposed to cover was lengthy, many irrelevant issues were included. It is odd that age and part time discrimination claims were included so some thought had been given to that but one can only assume the draft provided had different circumstances in mind. There clearly had been some issues raised in relation to the claimant’s condition which may be a disability as can be seen from the provision of the doctor’s letter.[82]The agreement clearly does not include disability discrimination therefore it is not apparent that this is a dispute the parties intended to be settled at the time of any agreement, and therefore nothing from which I can infer that that was the intention at the time. The Hinton case makes it clear that the particular complaint has to be referred to and it was not. Whilst there is a general waiver I find this was insufficient to satisfy ‘particular proceedings’.[83]To accordance with section 203 and the relevant case law therefore I find disability discrimination should have to be referred to, consequently if I am wrong about the settlement not being binding I would find it did not exclude the claimant bringing a disability discrimination claim.
Summary
[84]Accordingly, I have found that there was not a binding agreement and if I am wrong on that there was in any event no agreement to settle a disability discrimination claim.[1]This was a preliminary hearing to decide if the claimant was a disabled person at the relevant time. The claimant has brought claims of unfair dismissal and disability discrimination. The respondents dispute that the claimant is a disabled person.[2]The claimant produced an impact statement and gave live evidence. I also considered a bundle of documents which, including the most recent GP report, amounted to 151 pages. Relevant Legal Principles[3]Section 6 of the Equality Act 2010 provides: “a person (P) has a disability if –(a) P has a physical or mental impairment and,(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities”[4]I also considered Schedule 1 of the Equality Act 2010 - the further supplementary provisions on the definition of disability, and the statutory Guidance on matters to be taken into account in determining questions relating to the definition of disability 2011. Relevant findings of fact[5]The claimant worked as a cutter for the first respondent.[6]On 2 September 2009 the claimant had a 14 day absence as a result of hip pain. On 22 September 2009 the claimant was signed off for three weeks also because of hip pain. 4. By April 2011 the claimant had another two weeks of absence because of hip pain, and in June 2012 had two weeks’ absence as a result of lower back pain. 5. In July 2012 the claimant was signed off for four weeks because of back pain and in December 2015 he had two weeks’ absence due to a fall which included hip pain. 6. In June 2017 the claimant had one week’s absence as a result of hip pain, and was diagnosed with disc disease. In July 2017 the claimant had another week’s absence as a result of hip pain.[7]The GP letter of 9 March 2018 details the claimant as suffering from hip and groin pain and under the care of the hospital. The hospital records record “inpatient treatment”. The GP report records that the claimant was waiting for an appointment with the pain team, and confirms that he was on strong painkillers. The GP advised the respondents that the claimant should avoid any lifting activities and his cutter role, because that role required his hips to be bent.[8]On 21 March 2018 the Pain Management Clinic produced a report. The claimant’s account of his condition in that report is consistent with the evidence that he gave today. It is recorded that the claimant had suffered with hip problems for a period of eight years. It is recorded that the claimant had received steroid injections that did not assist and that walking aggravated his condition. The Pain Management Clinic confirmed that the claimant had postural and muscular imbalance. It was the claimant’s evidence that he walked with a limp. The clinic suggested that the claimant try and improve his activity despite the pain from which he was suffering.[9]On 26 March 2018 the claimant spoke to the third respondent. The claimant told the third respondent that he has been off sick because of his condition and could not do his job. The claimant also explained the side effects of his medication.[10]On 28 October 2020 the claimant’s GP conducted a full review of the medical records. The GP confirmed the diagnosis of hip dysplasia and advised that the condition would deteriorate over time. The GP confirmed that there had been an increase in the severity of pain and noted in particular, that from 2017 onwards, the claimant took morphine.[11]The GP also noted that it was not until October 2019 that the claimant decided to try and wean himself off the medication due to the side effects. The GP also records that the claimant has reported difficulty with walking and sleeping. Submissions[12]The respondents’ position is that the claimant did not meet the definition of disability because the claimant’s impairment did not have a substantial and adverse effect on his normal day to day activities at the relevant time. The respondents also contend that the claimant was not credible because there was missing documentation, and because there was an exchange during the course of the hearing between the claimant and his representative before the claimant had finished his evidence.[13]It is the claimant's case that he had a physical impairment that had a substantial and adverse effect on his normal day-to-day activities. It is submitted that the medical records support the taking of substantial medication at the relevant time. The claimant submits that there should be a focus on what he could not do, and that his condition is long term.[14]The claimant's representative disputed the nature of the exchange with the claimant. It is the representatives position he was trying to tell the claimant that his microphone was live and he could be heard by the Tribunal. It is submitted that the claimant has proven that he is honest. Discussion and
Conclusions
[15]It was agreed that the relevant period of time for the purpose of the disability discrimination claim was February and March 2018. The question for the Tribunal is whether the claimant was a disabled person in February and March 2018 in accordance with section 6 of the Equality Act 2010.[16]In reaching my judgment I have looked at each element of the definition of disability. Physical and Mental Impairment[17]There is evidence in the medical records that the claimant suffered from hip dysplasia. The diagnosis was confirmed by his GP in the report of 28 October for which the GP conducted a full review of the historical records. The historical records record that the claimant suffered with problems with his hips, he had treatment for the pain in his hips and was referred to a pain management clinic. The claimant had a physical impairment during the relevant period of time. Long Term[18]The claimant has suffered from this condition since 2009. In accordance with the GP report of 28 October 2020 it is likely to last, unfortunately for the claimant, for the rest of his life. By February and March 2018 the claimant’s impairment was long term. Normal day to day activities[19]The guidance on the definition of disability, and in particular section D deals with normal day-to-day activities. The respondents’ representative took the claimant through the day-to-day activities listed at paragraph D3. Whilst the normal day-today activities can include general work-related activities, it was put to the claimant that the lifting of industrial machinery was not a general work- related activity. I agree that it would not be a general work-related activity.[20]However, the claimant did give evidence, both in his impact statement and during the hearing, that his wife does have to help him with the shopping and the housework. The claimant gave evidence that if he walks to the shops he is in pain, and has a fear of falling. There is evidence within the medical records that the claimant has had previous falls. The claimant’s evidence was that as a result, it takes a longer amount of time than would normally be expected, for a short trip to the shops.[21]The claimant described not being able to help his wife put the shopping away unless it was put onto the counter for him, which is consistent with the medical evidence from the GP that the bending of the claimant's hips is a problem. Similarly, the claimant said he could not bend to wash his feet and his wife had to assist him with doing this task.[22]The claimant has not had a holiday since 2016 and he has given up taking his grandchildren swimming because he says it is too painful. He also reports in his impact statement that he has difficulty sleeping, and the medical records reveal that this has consistently been reported to his GP. Substantial and adverse effect[23]The guidance on the definition of disability states that a substantial and adverse effect must be something that goes beyond the normal differences in abilities. The effects have to be more than minor or trivial.[24]The claimant was asked about how he had travelled to attend the last Tribunal hearing. The claimant gave evidence that he took the car to the train station near his home because he could park directly outside the station. It was the claimant’s evidence that he travelled by train to Manchester Victoria station and it then took him 30-45 minutes to walk to the Tribunal from the station. It takes a person with normal walking ability approximately ten minutes to complete the same journey. The fact that it took the claimant approximately 30-45 minutes is more than minor or trivial effect on the normal day to day activity of walking.[25]The claimant does carry out walking activities if he has to, but he is in pain. The claimant is concerned about falling and it takes him much longer than it would take somebody who has a normal ability to walk. The claimant has also given evidence that when he has to walk further distances he has to be accompanied by his wife due to his fear of falling. The claimant has given up swimming, and he has had trouble sleeping.[26]During the relevant period of time in February and March 2018 the claimant was still on what the GP has described as “serious painkillers”. However, the records also reveal that the medication had no effect on the management of the claimant's condition.[27]During the relevant period the claimant’s physical impairment had a substantial and adverse effect on his normal day-to-day activities.[28]As a result of my findings I conclude that in February and March 2018 the claimant was a disabled person for the purposes of section 6 of the Equality Act 2010. Credibility of the claimant[29]During the course of his evidence the claimant drew the Tribunal’s attention to the fact that he had attended a Department of Work and Pensions assessment. I expressed dismay that this documentation was not in the bundle. The respondents’ representative submitted that the claimant was withholding evidence and raised questions about his credibility.[30]The claimant's representative submitted that the legal test to qualify for a benefit is different to the legal test to establish disability in accordance with section 6 of the Equality Act 2010. It was submitted that the claimant did not think the report was relevant.[31]I did not agree with the respondent’s submission that the claimant was attempting to withhold evidence – the claimant volunteered this evidence without prompting and I accept that his failure to disclose this evidence was due to a lack of understanding about the relevance of such evidence. I concluded that I had sufficient contemporaneous medical evidence to determine the disability question without that report. I accept that there are two different tests.[32]The content of the dismissal letter and the reason that is given to the claimant for his dismissal reveals that the respondents did not dispute the medical evidence or the claimant’s account of his condition on the date of dismissal.[33]It was also submitted that there was an exchange between the claimant and his representative during a break in the evidence. The hearing was conducted via Cloud Video Platform and the parties remained logged into the hearing room during that break. The respondents’ representative submitted that the claimant’s representative gave the claimant a thumbs up – suggesting that he was giving good answers and this interaction has a bearing on the claimant’s evidence and credibility.[34]The claimant’s representative submitted that the claimant’s microphone was live and he could be heard chatting to his wife. The claimant’s representative submitted he had gesticulated to the claimant to turn his microphone off so he could not be heard and when this happened, he gave a thumbs up. I am unable to comment on this exchange which was only raised by the respondent at the end of the hearing. I was not concerned that evidence given by the claimant after the break changed in any material way to suggest he had been influenced by any exchange with this representative during the break.
Introduction
[1]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[2]Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[3]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”[4]Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re- litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”[5]In common with all powers under the 2013 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication.[6]In Outasight VB Limited v Brown [2015] ICR D11 EAT the Employment Appeal Tribunal determined that: “Establishing whether it would be in the interests of justice to reconsider a Judgment is a judicial exercise which requires the consideration of the interests of both parties, the party seeking the reconsideration but also the other party, and to the public interest that there be finality in litigation.”[7]In the case of Ladd v Marshall [1954] 3 All ER 745, CA, the Court of Appeal confirmed that reconsideration may apply where there is new evidence if it was not reasonable to obtain that evidence prior to the final hearing, that the evidence is relevant and would have an influence on the final hearing, and is credible.[8]In Douglas Water Miners Welfare Society Club v Grieve EAT 487/84 the Employment Appeal Tribunal determined that where a party is taken by surprise with a piece of evidence previously undisclosed, the proper course of action during the actual hearing will be for the party to seek an adjournment. The Employment Appeal Tribunal concluded that where such a request is not made, it is unlikely that the Tribunal would agree to reconsider a Judgment on the grounds that a party had been taken by surprise. The Application[9]The respondents seek a reconsideration of the judgment that the claimant is a disabled person within the meaning of section 6 of the Equality Act 2010 because they have obtained a copy of an assessment by the Department for Work and Pensions which the respondents say casts doubt on the evidence given by the claimant at the preliminary hearing on 13 January 2021, and given by the claimant in his disability impact statement.[10]The respondents also submit that because the Department for Work and Pensions assessment makes reference to other documents which have not been disclosed to the respondents or the Tribunal, the parties were not on an equal footing at the preliminary hearing on 13 January 2021 and therefore it would be in the interests of justice for me to revoke my Judgment and re-list the matter for another preliminary hearing to determine whether the claimant is a disabled person within the meaning of section 6 of the Equality Act 2010 after the respondents are in receipt of the undisclosed documents.[11]The respondents do not appear to challenge the finding that the claimant had a physical impairment nor that it was long-term but rather, that there had been a substantial and adverse effect on his normal day-to-day activities. At paragraph [15] of the Judgment, it was agreed between all, that the relevant period for the purposes of determining whether the claimant was a disabled person within the meaning of section 6 of the Equality Act 2010 was February and March 2018.[12]The purpose of the report prepared by the Department for Work and Pensions was to establish if the claimant qualified for payment of benefits from 20 August 2019. The report itself was prepared and sent to the claimant on 24 November 2019. This assessment of the claimant’s impairment does not relate to the relevant period of February and March 2018.[13]The respondents do not deal with why the assessment made some 18 months later is relevant to the finding that the claimant was a disabled person within the meaning of section 6 of the Equality Act 2010 in February and March 2018.[14]At paragraphs [7] and [8] of my findings I refer to evidence from a Pain Management Clinic produced in March 2018 to which the claimant had been referred in light of his difficulty managing pain.
Discussion and Conclusions
[15]My findings at paragraphs [20] and [21] about the claimant’s evidence was not that the claimant could not walk, but rather that he had difficulty walking, was in pain, and it took longer than would normally be expected. In addition, the claimant also gave evidence that he had difficulty bathing.[16]During the course of the hearing the claimant volunteered that he had been for an assessment to the Department for Work and Pensions and whilst this documentation was not contained within the bundle, I determined that the test used by the Department for Work and Pensions was different to the test as to whether a person is a disabled person within the meaning of the Equality Act 2010.[17]I remain satisfied that I had sufficient contemporaneous evidence to make a decision without sight of this report. I was also satisfied that the claimant had misunderstood that that report might be relevant to these proceedings, and that was the reason for the failure to disclose.[18]The respondents did not seek an adjournment for disclosure of this report or any associated documents and continued with the hearing.
Conclusion
[19]I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The application for reconsideration is refused.