Zinda v Ark School [2015] EWCA Civ 1596

Case No A2/2014/3963[2015] EWCA Civ 1596
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Tuesday, 28 July 2015
Strand
London, WC2
B E F O R E:
LORD JUSTICE BEAN
ZINDA
Applicant
-v-
ARK SCHOOL
Respondent
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Mr Zinda appeared in person
J U D G M E N T
Between
ZindaAppellantArk SchoolRespondent

LORD JUSTICE BEAN:

[1]Mr Zinda was employed by Ark School and was dismissed in July 2008. He brought an Employment Tribunal claim for unfair dismissal among other things. That claim was settled by means of a Compromise Agreement, to which I shall come in a moment, and on the basis of that Compromise Agreement the Employment Tribunal claim was withdrawn. The Compromise Agreement contained a number of clauses. In particular at 5A the employer agreed not to publish detrimental statements about Mr Zinda. Clause 9 was what is generally known as an entire agreement clause and contained the sentence:
"By signing this agreement you [that is Mr Zinda] confirm that you are not entering into it in reliance upon any oral or written representation made to you by or on behalf of the employer. Nothing in this agreement shall exclude or limit liability for fraud or fraudulent misrepresentation."
Clause 12.1:
"You confirm that you have received advice from your Adviser regarding the terms and effect of this agreement and in particular its effect on your ability to pursue your rights before an Employment Tribunal. You have agreed these terms and conditions in the light of this advice."
The "Adviser" is defined in clause 14.1 as Mr Daryl Long of the National Union of Teachers. The Compromise Agreement contained provision for a termination payment to Mr Zinda which I understand to have been £20,000.[2]The employers made a report to the Independent Safeguarding Authority about Mr Zinda which he claims was in breach of clause 5A of the Compromise Agreement and they claimed was in fulfilment of a statutory obligation. I should say at once that there is no suggestion, as in some cases about reporting of teachers, of any child molestation or anything of that kind. The allegations were about financial matters. I am not here to adjudicate on whether they were well founded or not.[3]Mr Zinda brought a High Court claim headed "Particulars of Claim for Breach of Contract" issued on 7th February 2011. This included at paragraph 32 an allegation that the Compromise Agreement had been breached by the defendant and he was no longer bound by its terms. The employers applied to strike out the claim or for summary judgment in their favour, and following a hearing before Master Eastman on 11th November 2011, at which Mr Zinda appeared in person and the defendant by counsel, Master Eastman did indeed give summary judgment on this contract claim for the defendant. There was no appeal from that decision.[4]There were other proceedings brought by Mr Zinda. He made a defamation claim against the employers and he sought judicial review of the Independent Safeguarding Authority's refusal to remove from their records the allegations made against him. These were unsuccessful.[5]In 2013 he presented a claim to the Employment Tribunal. (There were two versions of the ET1 because the first one contained errors: nothing turns on that.) He sought in effect to re-open the unfair dismissal claim. Employment Judge Sarah Goodman made a decision not to accept the claim because the tribunal had no jurisdiction and essentially she held (paragraph 12):
"The claim that the Compromise Agreement was void had already been decided by the High Court. These points could not be litigated in the Employment Tribunal."
She noted that a previous attempt had been made in 2012 to reinstate the employment claims but it was not clear what had happened. Anyhow, she held that the tribunal could not consider the claim.[6]Mr Zinda appealed to the Employment Appeal Tribunal. At a hearing before Judge Richardson the grounds of appeal were re-fashioned, the appeal went to a full hearing before Supperstone J and Supperstone J dismissed the appeal. Mr Zinda sought permission to appeal from that decision which was refused on paper by Lewison LJ and he has renewed the application orally before me.[7]As I explained to him, it is settled law that although the appeal is in form from the decision of the EAT, the focus must be on the decision of the Employment Tribunal and whether that was right or wrong in law.[8]Mr Zinda has addressed me with skill and courtesy and is clearly an articulate man. He relies in particular on section 10 of the Unfair Contract Terms Act 1977. This section headed "Evasion by means of secondary contract" says that:
"A person is not bound by any contract term prejudicing or taking away rights of his which arise under, or in connection with the performance of, another contract, so far as those rights extend to the enforcement of another’s liability which this Part of this Act prevents that other from excluding or restricting."
[9]Part 1 of the Unfair Contract Terms Act 1977 dealt in particular with contracting parties where one of them deals as consumer or on the other's written standard terms of business. It is not, despite its rather grand title, a statute which allows a court to reopen contracts generally on the basis that they are unfair.[10]Mr Zinda argues that the Compromise Agreement was something written by Ark School, or in all likelihood their lawyers; he had no part in the drafting. It may be a reasonable assumption, he says, that they use that form or something like it whenever they compromise an Employment Tribunal claim brought by an employee. Therefore, he says, clause 12.1 of the Compromise Agreement infringes section 10 of the 1977 Act; therefore it is ineffective; and therefore his withdrawal of the Employment Tribunal claim was ineffective as well.[11]I have to say that I do not consider this remotely arguable. The Employment Judge was adjudicating on whether the claims withdrawn some years earlier could be revived or replaced by a new claim covering the same ground. She was plainly correct to hold that they could not. I do not consider that it is arguable that a compromise agreement drawn up to satisfy the requirements of section 203 of the Employment Rights Act 1996 and thus allow the effect of settlement of an Employment Tribunal claim that otherwise could not be settled is an agreement falling within Part 1 of the Unfair Contract Terms Act 1977. Moreover, if this argument were at all viable, which in my judgment it is not, it was be a matter which could have been raised before Master Eastman in the High Court claim rather than affecting the Employment Tribunal claim. The compromise of the Employment Tribunal claim was clearly valid. The adviser from the National Union of Teachers was a type of adviser permitted to advise on compromise agreements to satisfy the terms of section 203. It is very common for trade union representatives to do so. Mr Zinda tells me, and it is apparent from his latest bundle, that he has sued the National Union of Teachers as well. Again, this has been the subject of a much more recent judgment by Master Eastman striking out that claim, but in any event that litigation has nothing to do with the decision of Employment Judge Goodman under scrutiny.[12]Mr Zinda also criticises clause 9 of the compromise agreement, that is the entire agreement clause. He says that the compromise agreement is very one-sided. Clause 9 contains confirmation by him, Mr Zinda, that he is not entering into the agreement in reliance upon any representation made by the employer. There is no corresponding warranty by the employer. The employer by contrast gave a warranty or made an agreement about detrimental remarks in clause 5A about which he feels deeply. He says they have been allowed to renege on the compromise agreement which makes it a total sham. I appreciate his feelings, but they do not give rise to any arguable flaw in the decision of the Employment Judge.[13]Like Lewison LJ, I have come to the conclusion that there is no arguable ground of appeal to this court in this case and I must therefore refuse the renewed application for permission.