Byrnell v British Telecommunications & Anor [2009] EWHC 727 (QB)

Case No QB/2008/APP/0842

[2009] EWHC 727 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20 th February 2009

Before

HIS HONOUR JUDGE REID QC

Between

CHARLES BYRNELLAppellant

(1) BRITISH TELECOMMUNICATIONSRespondents

(2) MR STANBURYRespondent

Digital Transcript of Wordwave International, a Merrill Communications Company

101 Finsbury Pavement London E C2A 1ER

Tel No: 020 7422 6131 Fax No: 020 7422 6134

Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com

(Official Shorthand Writers to the Court)

MR BYRNELL appeared In Person for in person

MR D MITCHELL appeared for 1 st Respondent

MR P MITCHELL appeared for 2 nd Respondent

Judgment

[1]These are two appeals from a judgment dated 28th November 2008 of Master Rose. By his first order he struck out the claim made by the claimant against the first defendant and by his second order he refused to strike out the claim against the second defendant. The claimant appeals in respect of the first order and the second defendant in respect of the second order.

[2]The background is that the claimant was employed by BT or, its subsidiary Syntegra, from 16th March 1992 until 31st December 2001. Those dates can be seen on his ET1 when he applied to the Employment Tribunal (see page 193 of 609 in the first of the defendant's bundles). No distinction is drawn in these proceedings between BT and Syntegra. He was employed as a Technical Designer and Design Authority for Software Systems and Sub-System Design. On his own account in the last two years of his employment he had only three weeks actual work. In the last seven months he had no contact from Syntegra's resourcing department.

[3]On 29th November he was summoned to a meeting and given notice terminating his employment at the end of the year. He was told of a package available if he signed a compromise agreement. His pass was withdrawn. He was escorted from the building. The following day, 30th November, he returned under escort, cleared his desk, tidied his computer under supervision and had a further discussion with Mr Clemson, who appears to have taken the lead in HR matters on behalf of the defendants. There was a discussion in which he says he was told by Mr Clemson that the amount available under the compromise agreement, if he signed it, would be far greater than he could get from an Employment Tribunal.

[4]On 17th December he had a further meeting with Mr Clemson and there was then an offer made off an increased severance package. That offer was open for acceptance until 11th January and with it came an offer of a non-detrimental reference. According to what the claimant says is a transcript of a surreptitiously taken tape of that meeting, Mr Clemson said to him:

"In terms of a reference Charles, the reference which we’d [put with] the package would say: we can agree a reference with you, but certainly it would not be in any way detrimental to you, it would be stating you were in our continuous employment through the period working on major projects, and there would be no reason for us to give a reference to any employer which stated how much time you had spent AFA (available for assignment) [sometimes referred to in this industry, I gather, as being on the bench]. We’d just say that these are the skills you developed with us and these are the types of projects you had worked on, and that you were continuously employed and took a voluntary leaver’s package. We certainly would not want to inhibit you in any way in your onward [further?] employment."

Then later on, he said:

"We are not expecting you to give us an immediate answer, you know, do…. take this information along, think about it, discuss it with friends and family,..."

[5]He was given a copy of the release agreement in an amended form with a covering letter. That he received on 20th December. On 10th January he emailed a proposed reference to Mr Clemson. What he was proposing at that time was a reference in these terms:

"Charles has worked to a fully satisfactory standard throughout his time with BT plc and Syntegra Limited and left the company voluntarily for personal reasons. His health was at all times good. His job title was Technical Designer and Design Authority whilst he was with Syntegra. He worked on a number of projects including Sunrise, Telfort, Barclays and CCS-UK. His final salary was £33,500, plus a 9% bonus in lieu of overtime."

[6]On the following day, Mr Clemson responded:

"Charles, It is Syntegra's policy in all circumstances to supply a reference that is factual only and makes no comment on performance. I am sending you in a separate email a copy of this model reference for your information. If you were to indicate to me today that you are prepared to sign the compromise agreement then I would be prepared to add to the reference a statement indicating you left voluntarily for personal reasons. I note your request for a further PPR."

[7]The draft proforma request was in these terms:

"Dear Name, REFERENCE REQUEST Name, Thank you for your recent letter regarding the above named. The information I can provide is as follows. Name was employed by Syntegra from Date to Date as a Dev. Stage within the Name skill group. His/er employment was both permanent and full-time. It is not the policy of Syntegra to comment on an individual's suitability to undertake a new position. Yours sincerely..."

Then provision for a signature by somebody in the HR administration.

[8]That was emailed through at 9.48 in the morning and at 10.31 the claimant responded:

"Nigel, I find this 'reference' totally unsatisfactory. Whatever this letter is supposed to communicate, it is plainly not a reference, for the ambit of the letter is simply to refuse to give any reference at all. The information you choose to supply is in any case in the public domain and held externally to Syntegra. Any employer would already have access to that information. A refusal to give any reference is always taken as an unsatisfactory reference and is in itself wholly prejudicial. I remind you that you agreed to supply a 'non-prejudicial' reference as part of any bargain. "

The issue I have is that the documents show that my performance never fell below 'fully satisfactory' and you are refusing to communicate that fact. That is clearly prejudicial. “I therefore propose a further statement: 'Our documented records do not indicate any disciplinary or other issues with performance with this employee.'"

[9]During the course of the morning the claimant went to see Mr Stanbury, the second defendant, a local solicitor. He indicated concerns about the reference. Mr Stanbury said in the witness statement dated 22nd September 2003, which he provided on behalf of the applicant in subsequent proceedings in the Employment Tribunal in Southampton:

"At the brief initial meeting Mr Byrnell indicated he was concerned about the reference being offered to him. BT had indicated they would only supply a proforma reference with no comments on his performance. He drew my attention to the draft reference offered and the paragraph in the agreement whereby the employer agreed to provide a non-prejudicial reference on request. I mentioned to him the possibility of negotiating with BT a reference which could then be annexed to the agreement."

[10]At the end of that brief meeting, Mr Stanbury arranged to see Mr Byrnell at 3 o'clock that afternoon. During that meeting the claimant left with Mr Stanbury a copy of the draft Agreement. Shortly after the meeting with Mr Stanbury had commenced, at 3.21 in the afternoon and, therefore, obviously unknown to either Mr Stanbury or the claimant at the time that Mr Stanbury was advising and (his witness statement indicates that the advice took about an hour), Mr Clemson emailed the claimant:

"Charles, I have just finished a meeting so have only now read your email below. I do not think that you will find that Syntegra policy is wholly consistent with that adopted by most companies in light of case law that holds them liable for statements made by ex-employees. Neither we, nor do we believe do other employers, take a reference in the nature proposed to be anything other than standard practice and do not put any negative connotations on it. Your ex-colleagues and their solicitors seem to be in agreement and to have accepted references of this nature to be appropriate and non-prejudicial."

[11]Mr Stanbury gave advice (according to his witness statement that I have already referred to, at paragraphs 5 to 7):

"5. At the meeting I expressed the view that Mr Byrnell was unlikely to be able to negotiate the wording of a full reference. He accepted my advice to sign the agreement as it was offered to him. I advised that as the agreement did not contain any mention of the reference offered, this would enable him to raise this as an issue with BT as a later stage if this became necessary. However, Mr Byrnell signed the agreement, knowing the terms of the only reference BT were prepared to offer him. 6. The Agreement had to be concluded that day otherwise the enhancement offered would be withdrawn. Mr Byrnell accepted my advice. We went through the remainder of the agreement. I was with him for about an hour. I suggested a minor amendment to the agreement to record the agreed holiday entitlement. 7. Mr Byrnell then left to return to his employer's offices, which are only about one and a half miles from my office. He returned a short time letter with a fair copy of the agreement, which he signed in my presence and I countersigned, and he took it away with him to deliver to BT before close of business that day."

The claimant told me in the course of this hearing that he delivered that shortly before 5 o'clock.

[12]The claimant expresses doubts as to whether the reference, so-called, is indeed a reference.

(d) of the Agreement (177 of 609):

"(d) You agree [that is the claimant agrees] that you will not at any time:- (i) Make any statement in relation to the organisation or its business or any of the employees thereof which is intended to or likely to have the effect of damaging or lowering their reputation; (ii) Wrongfully represent yourself as being employed by the Company or conduct yourself in any way in a manner inconsistent with having surrendered your position with Syntegra. As an organisation, we commit to not making any prejudicial remarks, as evidenced by provision of a non-prejudicial reference on request."

[13]Following Mr Stanbury's suggestion, Mr Byrnell hoped to obtain a further reference by negotiation after conclusion of the Agreement. This ended in failure. The end of the line, so far as this part of the story is concerned, is to be found in an exchange of emails (188 and 190 of 609). At 191 is the covering letter to 190, which says, having indicated that an open reference is attached:

"You are of course free to approach any member of Syntegra staff with whom you have previously worked and request they provide you with a personal reference. This would be able to address subjective matters such as an assessment of competence and honesty. I trust this now draws this matter to a close and wish you well in your continuing search for employment."

[14]The reference described as Private and Confidential is dated 20th February 2002, “To Whom It May Concern, reference request”, [then gives the claimant's name and National Insurance No:] The information I can provide is as follows: Charles Byrnell was employed by Syntegra from 16th March 1992 to 31st December 2002 as a Design Authority within the Design Skill Group. This employment was both permanent and full-time. It is not the policy of Syntegra to comment on an individual's suitability to undertake a new position." Signed by Mr Clemson. It was, therefore, entirely in line with what had been indicated as being the reference that he would provide.

[15]On 27th March, following that exchange, the claimant began proceedings in the Employment Tribunal alleging unfair dismissal and fraud and claiming reinstatement. He made, in fact, further application to the Employment Tribunal on 9th May 2003 in the following year, but that was subsequently withdrawn. On 9th April Mr Clemson signed the answer. In the answer, he said: "The applicant was not dismissed from our employment. He, along with a substantial number of other employees, was invited to participate in a targeted voluntary leavers programme. Under the terms of this programme the applicant was given the opportunity to take an enhanced termination package on a voluntary basis or to register with the BT redeployment service and seek redeployment into another part of the BT Group. The applicant chose to participate in the programme and opted to take the termination package. This gave him a payment of £37,345.31, equivalent to more than 13 months gross salary. The applicant freely entered into a compromise agreement dated 11th January 2002 that complied with the statutory provisions regulating such agreements under section 203 of the Employment Rights Act 1996." [quotation unchecked] Then went on to deal with other matters.

[16]The application to the tribunal came before Mr Edwards as a Chairman -- I am not sure if he was then the Regional Chairman -- for a preliminary hearing and owing to some failing in the Tribunal Services Office, notice of the preliminary hearing was not given to BT. The result of that was that only the claimant turned up, but Mr Edwards took the view, having considered the papers, that the claim that the claimant was making was one which was unlikely to be successful and made an order that the applicant pay within 21 days (beginning with the date on which the order was sent to the parties) a deposit of £250 as a condition of being permitted to continue to take part in these proceedings.

[17]Against that order the claimant appealed. On 9th September 2002 permission to appeal was given ex parte by a division of the Employment Appeal Tribunal, chaired by Mr Recorder Underhill QC (as he then was) with two lay members. By that decision the tribunal expressed the view that it was arguable that the reference was given was so insubstantial as to be no reference at all and that the Chairman erred in law and should not have taken account of the ability to approach members of staff for a personal reference. That, of course, was not any finding that either of those claims was made out, it was merely a determination that there was enough in them and they were sufficiently arguable for the matter to go to a full hearing. History does not appear to relate what happened to that appeal. Since in substance the appeal was only an appeal against an order for the provision of £250 by way of security I suspect that the answer was that the appeal was not opposed. The claimant had in the course of the appeal sought to raise a further point under section 203(2) of the Employment Rights Act 1996, but the tribunal was not prepared to allow him to raise this further point de novo on an appeal.

[18]The case then proceeded and on 1st August 2003 an interlocutory order was made by Mr Cowling (sitting as a Chairman). By this time the claimant was being permitted to raise the issue of whether the Agreement complied with section 203 and, in particular, whether the Agreement complied with section 203(3)(b).

[19]On 24th February 2004 the case was heard by the Employment Tribunal at Southampton. The application was dismissed in a reserve judgment, which was sent to the parties on 19th March 2004. The unanimous decision of the tribunal, chaired by Mr Trickey, was that the claimant was prevented from bringing unfair dismissal and sex discrimination complaints as a consequence of his having entered into a compromise agreement. Accordingly, the complaints were dismissed. The complaint of race discrimination was dismissed on withdrawal as were his claims in the further originating application of 9th May 2003, to which I have already referred.

[20]At that hearing the claimant called Mr Stanbury as a witness (I have already referred to his witness statement) and he was allowed to argue, though he argued unsuccessfully, that the compromise agreement was not binding on him because of failure to comply with section 203(3)(b) of ERA. From that decision he appealed to the Employment Appeal Tribunal, on this occasion a panel chaired by Judge Ansell, and that appeal was heard on 13th October 2004, a reserve judgment being delivered on 4th November 2004. Two points were argued before the tribunal. First that there had been a total failure of consideration in respect of the compromise agreement because of the failure to provide a reference. Secondly that the respondent company, BT, could not rely on the compromise agreement because it failed to comply with section 203. The Employment Appeal Tribunal held that there was no breach of section 203. Curiously, the summary which is provided and which I think is usually, if not invariably, drafted by the Chairman says of the compromise agreement:

"Compromise clause could be relied on, it did not comply with section 203."

But the substance of the judgment was that the issues had already been raised:

"We agreed with the tribunal's view, ”concluded the appeal tribunal” that the Agreement therefore did relate to complaints which had clearly already arisen in the contemplation of the appellant and thus the compromise agreement contained in clause 4 related to those claims. For these reasons this appeal is therefore dismissed."

[21]The claimant sought permission to appeal to the Court of Appeal. His application on paper was evidently dismissed because he made a renewed oral application to a division of the court comprising Mummery LJ and Tuckey LJ. So far as that was concerned, the judgment of Tuckey LJ at paragraph 16 says:

"I have already said what I think is the proper meaning of the words in question in context. All it is necessary to say in this case is that although the complaint was not one which had been raised in correspondence by Mr Byrnell, it was clearly one which was, to use his words, ‘in the air’ at the time this compromise agreement was made. So this was not a case in which these complaints had not yet arisen and might only arise on the off-chance. So Lunt does not persuade me that the tribunal in this case got the matter wrong."

[22]The reference to Lunt is a reference to the case of Lunt which is reported

[1999] IRLR p458

. Mummery LJ agreed with that. He said:

"I agree. No question of law arises from the decision of the Employment Tribunal in this case. The Employment Tribunal correctly interpreted and applied section 203(3)(b) of the Employment Rights Act to the facts of this case. I agree with Tuckey LJ the decision in Lunt[1999] IRLR 458, in particular the passage at paragraph 21 of the report, is not an exhaustive statement of the situations covered by section 203(3)(b). In this case the Employment Tribunal was entitled to find the requirements of that section in respect of the ‘particular proceedings’ were satisfied."

[23]The next stage in these proceedings did not take place for some considerable time and on 10th January 2008, the day before any limitation period in respect of anything arising out of the compromise agreement or advice given prior to the execution of the compromise agreement would have expired, these proceedings were issued. By his claim the claimant said that the first defendant failed to provide a reference or a satisfactory reference in breach of contract or a common law duty to provide a reference. Secondly, that there was a conspiracy to cause economic loss which he expanded to be also a claim in misrepresentation. Then, as against the second defendant, he said that the second defendant was negligent in advising there was an enforceable compromise agreement under section 302(2)(f) of ERA, that being a new assertion. The claim form does not, in fact, refer to 302(2)(b), although that particular argument has been revivified in the course of the proceedings. He said also the second defendant was negligent in failing to make clear "to the claimant generally what the agreement represented for him in legal terms overall value".

[24]The Master before whom the matter came held that the Agreement was binding. It did comply with section 203(2)(f) and 3(iii) and his finding in relation to that is at paragraphs 15 to 17 of the note in his judgment:

"The Claimant in his argument urged the Agreement was not binding on him, and that D2 should have advised him it was not binding. He submitted that the Agreement did not satisfy section 203(3)(b) or section 203(3)(f) of the Employment Rights Act 1996."

He then read the provisions, and went on:

"The claimant says that section 203(3)(b) is not satisfied in that the Agreement did not relate to the particular proceedings within section 203(3)(f). In my judgment, it is impossible for the Claimant to sustain that submission. The Agreement itself provided that it was in connection with all claims he might have. The Claimant said he did not have any claims and was confused. But the Agreement refers to claims he might have. The Claimant says section 203(3)(f) was not satisfied as there was no statement that the regulating conditions were satisfied. I do not accept that: see paragraph 2(c) of the Agreement. That acknowledgment is, in my judgment, a statement that the conditions have been complied with. In any event, the document as a whole shows that the conditions had in fact been satisfied."

[25]The Master also said that the claim for a reference had already been compromised and went on to say that there was a reference within the terms of clause 3 of the compromise agreement. So far as conspiracy was concerned, he held that the allegations of deception as to the Agreement, denial of summary dismissal, misrepresentation as to him being a voluntary leaver and misrepresentation as to a reference were unsustainable and he, therefore, struck out that claim. As against the second defendant, he merely referred to the claim and dealt with the matter extremely briefly. Having set out at paragraph 43 of the note of judgment the essence of the claim, he said this at paragraphs 44 and 45:

"Mr Paul Mitchell for the Second Defendant urged that it would be stretching the limit of the Second Defendant's duty to say that he should have recognised this as a substantially undervalued settlement. The Second Defendant had said to the Claimant that he was taking a risk in accepting this agreement. That is a powerful argument. There is a difficulty though. The Agreement, and the provision of the reference, precludes claims for damages for breaches of clause 3(d). It is open to the Claimant to argue the Second Defendant should have advised differently regarding the reference. There is a triable issue about the advice given regarding the reference. If that issue is to be tried, then the Claimant for not recognising the value of the settlement should also be tried."

[26]On appeal in relation to his appeal, the claimant says, firstly, that there is a common law duty to provide a reference. In relation to that he referred to the decision in Spring v Guardian Assurance

[1995] 2 AC 296

by the House of Lords and in particular he referred to a passage in the judgment of Lord Woolf at page 345G. That passage is:

"The duty imposed by the Lautro rules is not for the protection of employees. It is for the protection of the public. An employee cannot therefore rely on the rules directly. However, they nonetheless demonstrate the importance now attached in the insurance industry to references being given and obtained. To be of value they need to be full, frank and, by implication, accurate references."

[27]It is worth noting that at the end of his speech, Lord Woolf said at page 354D:

"It only remains for me to underline what I anticipate is already clear, that is, that the views which I have expressed are confined to the class of case with which I am now dealing. Some of the statements I have made I appreciate could be applied to analogous situations. However, I do not intend to express any view either way as to what will be the position in those analogous situations."

[28]It is also noticeable that in that case (see the speech of Lord Goff) it was common ground that there is no legal obligation on an employer to provide a reference. He said at page 320B:

"Such a term may be implied despite the absence of any legal obligation on the employer to provide a reference (as I understand to have been accepted by the parties in the present case), and may be expressed to apply even after the employee has left his employment with the employer."

[29]In my judgment, the law is and always has been that there is no obligation on an employer to provide a reference. There is no general duty. I accept that there may in particular industries under a regulatory scheme be an obligation to provide a reference, as is the case in certain sectors of the financial services industry. I accept also that there might be an implied custom in some particular trade that a reference will always be provided. I have to say that I know of none and no example of any such industry where such an obligation is accepted was provided to me in the course of argument, but there is no duty to give a reference as a matter of general duty. However, if a reference is given there is an obligation that it should be accurate, or at least not negligently inaccurate. It follows that the claimant's primary point that there was a common law obligation to provide a reference, in my judgment was not sustainable.

[30]He then went on to argue that what was provided here was so inadequate as not to be a reference at all. He referred to a number of dictionaries. I think for present purposes it is sufficient to take passage from the Shorter Oxford English Dictionary where among other meanings the word "reference" I was referred to page 1776, column 3, about a third of the way down where "reference" is described as: "The act of referring one person to another for information or an explanation, 1815; the name of the person given as one prepared to vouch for the character of a person seeking employment or goods offered for sale etcetera; the person himself or loosely the testimonial given, 1865." [quotation unchecked]

[31]Then in the main Oxford Dictionary a similar passage was given at page 1147 of whichever volume this happens to be:

"(b) a (usually) written report produced by a referee, a testimonial” [and examples are given, firstly from 1895 and from 1924 Galsworthy’s White Monkey. “This was my first job since the war, so I could whistle for a reference”; and a reference to Punch of 21st October 1936."

[32]It is now a not uncommon practice for employers to refuse to give anything other than "references" in short form. I am also aware that there are at least some employers who no longer call what they provide references, but use such terms as Certificates of Employment. It does not, however, it seems to me, follow that this is a case where what was given could not properly be described as a reference. The claimant said that this was a case of peas and beans and what was given was not a reference in the sense of a testimonial, but something entirely different. I do not accept this. It seems to me that this was, at worst, a case of fat kine and lean kine.

[33]The problem here vis-à-vis the first defendant is that there has already been a decision that this was a reference as between the first defendant and the claimant and that it has also been held that the first defendant complied with the contractual obligation imposed on it by clause 3 of the Agreement. Whatever had been discussed earlier, by the time of the execution of the compromise agreement all that was on offer was the short form reference.

[34]In any event, I should add that all the claimant could have got was a truthful reference, which would have stated, one, that he left under a compromise agreement, if he executed the agreement; or, two, he was dismissed if he did not, and either, if such was the case, that he was redundant, or that he was regarded as an unsatisfactory worker: See the last email before dismissal, page 65 of 609, where the claimant sets out the last email that he received before his dismissal, nearly eight and a half months before what he describes as his release. It was in these terms:

"Charles, We have discussed this in the past. It is true that we had very little AFA and will continue to present you with opportunities, as we are currently. As for the response from people in the business, you need to draw your own conclusions as to the inadequate reasons for not being requested for assignment, but rarely is the feedback we get skills related."

Signed off by the UK Resourcing Manager of Syntegra.

[35]The claimant went on to say that if clause 4 of the compromise agreement deprived him of the right to a testimonial (if I can use that term to mean what I think he would call a full reference) the clause was void under the Unfair Contract Terms Act because(a) he was dealing as a consumer; and

(b) the compromise agreement was on BT's standard terms of business. In my judgment, neither of those points is a good one. He was not dealing as a consumer. The contract was not made in the course of BT's business. This was a deal with a member of staff employed for the purpose of the business. BT's business was not hiring and firing. Secondly, these were not standard terms of business; they were tailored to the particular circumstances. At best, it could be said that the general form of the agreement had been worked out over a considerable period of time and that the form of the agreement was one which was common to that offered to a number of other employees. As Mr Clemson said in his witness statement to the Employment Tribunal at paragraph 3 -- regrettably the copy of the witness statement in the bundle is unsigned and undated -:

"On 29th November 2001, I had an initial meeting with Mr Byrnell to offer him, together with several dozen other employees in the UK and several hundred worldwide, the voluntary termination package. This step was taken as a business imperative to rationalise the systems integration system to better face the emerging challenging in the market."

[36]Clearly, over years various common form clauses will be worked out and used time and again. It cannot, for example, be said that when somebody uses a standard form conveyancing precedent as the basis for a transaction that then is a contract on standard terms. Here what was produced was not standard terms of business, it was particular to the individual. The nitty gritty of it, all the detail in relation to money, dates and holiday pay, days holiday and the like of this individual, and in any event it seems to me that the terms were in the circumstances plainly reasonable. They were terms that he could take or leave. He had advice, advice paid for by his employer, and he could seek to negotiate on it, as in fact was done in relation to one minor amendment relating to days’ holiday.

[37]The next point taken on behalf of the claimant was that clause 4 was an exclusion clause and so void, as its effects were not brought fully to his attention. Reference was made to Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd

[1989] 1 QB 433

, where a division of the Court of Appeal comprising Dillon LJ and Bingham LJ (as he then was) held that: “ …where clauses incorporated into a contract contained a particularly onerous or unusual condition, the party seeking to enforce that condition had to show it had been brought fairly and reasonably to the attention of the other party; that, since the plaintiffs had done nothing to draw the defendants' attention to condition 2, the condition (per Dillon LJ) never became a part of the contract (as per Bingham LJ) the defendants were relieved from liability under the clause; and that, therefore, the plaintiffs could only recover the holding fee assessed on the basis of quantum meruit."

[38]That was a case where a photographic transparency lending library in answer from telephone enquiry sent 47 transparencies and there was within their conditions a condition that all transparencies had to be returned within 14 days of delivery, otherwise a holding fee of £5 a day plus VAT would be charged for each transparency retained thereafter. This was something which was not drawn to the attention of the defendants, nor were they aware of it.

[39]It seems to me that that case is not of any assistance to the claimant here. The draft Agreement which he had was given to him, he had a long period to study it and he was given the opportunity of taking it to a solicitor to go through it, as indeed he did. There is the world of difference between that and the Interfoto case where in the small print, no doubt somewhere in the packaging when the negatives arrived, there was the sort of clause which could not reasonably have been expected. It seems to me, therefore, that point is a bad point.

[40]Then it is said that there was the breach of contract to provide a statement of voluntary leaving, that in fact he was fired on 29th November and that he was to be treated as having been given no notice at all. Reference in relation to this was made to Cort v Charman

[1981] ICR 816

per Browne-Wilkinson J (as he then was). It seems to me that that is of no assistance. That was a case which followed on from Dedman(?). The reason is this, as emerges clearly from the holding. The holding reads:

"Held, allowing the appeal, that where an employer summarily dismisses an employee with salary in lieu of notice thereby repudiating the contract of employment, the effective date of termination within the meaning of section 55(4) of [of the then relevant Act, which was the Protection Employment Consolidation Act 1978] was the date of the summary dismissal rather than the expiry of the period in respect of which salary was paid, irrespective of whether or not the contract of employment continued for some purposes after the employers’ repudiation; that accordingly, the employee had not been employed for the qualifying period…"

[41]There is a distinction difference between that case where there is an instant dismissal and payment up to the date of leaving or date at which notice would have expired and a case such as this where he was given notice to expire at the end of the year and was paid on the due date such remaining salary as and when it fell due in accordance with the terms of the contract. He was not given pay in lieu of notice. He was given notice, he was placed on what is sometimes colloquially called gardening leave, in that he was escorted off the premises and the like, but he continued to be paid, and the other terms of his employment eg in relation to holiday pay or holiday accruing to apply.

[42]It was then submitted that Mr Clemson could say there was no dismissal or redundancy. Reference was made to an email from Mr Clemson to the claimant and there he informed the claimant:

"You are right to assert your contract is and continues to be with Syntegra. If you accept the enhanced package on offer, then your employment with Syntegra will be regarded as having ceased on 31st December."

[43]Mr Clemson suggested in his evidence to the Employment Tribunal that this was not a case in which there was a dismissal. I have already quoted the passage:

"The applicant was not dismissed from our employment. He along with a substantial number of other employees was invited to participate in a targeted voluntary leavers programme."

[44]Given the terms of what had occurred, I think that at best economical with the truth. Effectively, what happened was that the claimant was given the opportunity, he was allowed retrospectively to resign. He was in fact in a position where he could have asserted constructive dismissal. The image that came to my mind as this was being debated was old-fashioned murder mysteries where the villain is allowed to go into the study where he will find a pistol in the desk drawer and a bottle of whisky. Effectively, the claimant was given the opportunity of either shooting himself or being hanged. In my judgment though there was no breach of any contract to provide a statement of voluntary leaving. In any event, the reference that was offered did not suggest other than that his departure had been voluntary.

[45]The claimant's final point was a matter of construction of the Agreement. He said there was an obligation both to give a reference and for it not to be negative and that this was broken as to both limbs, firstly because a reference implied a testimonial, and, secondly, that it was in fact negative because of what it did not say. In my judgment, he is wrong in relation to both those points. Firstly, this does qualify as being a reference, and, secondly, it cannot be properly be regarded as being a negative reference given the totality of it where Syntegra make it perfectly clear that they do not provide any further comment. It is unfortunate that Mr Clemson was at one stage indicating that he was prepared to go further, but it does not seem to me that means that there was any breach of any term of the Agreement.

[46]The second limb of the claim against the first defendant, which was not in fact particularly strongly argued before me, was the conspiracy or misrepresentation limb. What was said was that the employer knowingly offered an invalid agreement, ie one which did not comply with section 203. Secondly, that the employer wantonly denied summarily dismissing him. Thirdly, that it represented that he was a voluntary leaver. Fourthly, it provided a reference which on a proper reading showed that he had been dismissed. The Master dealt with this matter fairly shortly in his judgment at paragraphs 31 to 41. I do not think I need read them out; they are there to be seen and, in my judgment, he dealt with them rightly. The draft Agreement, for reasons which we will come to, did comply with the requirements of the Act. So far as the wanton denial of summary dismissal and representation that he was a voluntary leaver go, on no view was he summarily dismissed and he certainly did not rely on any assertion to the effect that he was a voluntary leaver. He has no realistic prospect of showing this, despite his assertion to me that he had relied on the representation because he was confused as to his status. The position he found himself in was that he was given the option of taking what was so-called voluntary leavers package, or not taking it and ceasing to be employed anyway.

[47]So far as the reference is concerned, it was a standard short form reference and does not read taken as a whole as showing that he was dismissed. It was not, in my judgment, a prejudicial reference. After his dismissal, the claimant found it politic in order to obtain further employment to say that he had left voluntarily. He described this as untrue, but the BT conduct had made it mandatory for him to lie. In my judgment, the most that can be said is that at an earlier stage in negotiations Mr Clemson indicated a full reference should be given, but by the time of his signature of the Agreement the claimant was not relying on any assertion as to what reference should be given. At the time of the signature, the only reference on offer, as he well knew, was the standard short form reference.

[48]Quite apart from these problems, the claimant seems to me to have insurmountable problems under clause 4 of the Agreement so far as this conspiracy claim is concerned. Once the employer had taken (to use the expression used in the document "What happens next" which was handed to the claimant), “the difficult decision to release you from the business”, the claimant had the choice as to whether to accept the package. If he accepted the package he compromised any claim arising out of the termination (as this claim clearly did) and clearly it was live at the time of his signing of the compromise agreement. Witness what he told me as to his total lack of trust of Mr Clemson, as evidenced by his surreptitious recording of his meeting with Mr Clemson. The issue was a live one and it had been raised. So far as the events post termination are concerned, insofar as they are said to amount to a conspiracy or misrepresentation, there is no prospect of showing any loss arising from them. It follows, in my judgment, the Master was correct in refusing to allow the claim to proceed on any basis against the first defendant.

[49]So far as the claim against the second defendant is concerned, the Master allowed the claim to proceed on the basis that the claimant was putting his case in a two-fold way. This is set out in paragraph 43 of the Master's judgment which said:

"The essence of the claim is two-fold: (a) The Second Defendant should have advised that the Agreement was not binding because of its deficiencies having regard to section 203 of the Employment Rights Act 1996; (b) The Second Defendant's advice and conduct were deficient in that he did not recognise or advise that: i. The Claimant was in fact the subject of summary dismissal; ii. The settlement proposed was less valuable than the Claimant might have achieved; and iii. The advice which, on the Claimant's case, the Second Defendant gave (that the form of the reference could be left for later negotiations) was sufficiently negligent."

ii. The settlement proposed was less valuable than the Claimant might have achieved; and

[50]So far as the first head of claim was concerned, the Master held that section 203 had been complied with and I will turn now to that. The case on this, in fact, has rather grown as the litigation has gone on because initially the claim related only to one limb of 203 and subsequently moved on to a second limb. The relevant parts of section 203 are set out as follows:

"Any provision in an Agreement, whether a contract of employment or not, is void insofar as it purports: (a) to exclude or limit the operation of any provision of this Act; or (b) to preclude a person from bringing any proceedings under this Act before an Employment Tribunal."

[51]Subsection (2) provides:

"Subsection (1) - … (e) does not apply to any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under section 18 of the Employment Tribunals Act 1996 (That will normally result in an agreement in what is called a COT 3 form.) "and (f) does not apply to any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under section 18 of [the Employment Tribunals Act 1996], and does not apply to any agreement to refrain from instituting or continuing … any proceedings with [the following provisions of section 18(1) of the Employment Tribunals Act (cases where conciliation available) - (i) paragraph (d) (proceedings under this Act) [that is the Employment Rights Act], (ii) paragraph (h) (proceedings arising out of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000), (iii) paragraph (i) (proceedings arising out of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002), (iv) paragraph (j) (proceedings under those Regulations),] conditions regulating compromise agreements under this Act are satisfied in relation to the agreement."

[52]The various claims fall within the head “proceedings” under this Act and (3) of section 203 reads:

"For the purpose of subsection (2)(f), ie a non-ACAS compromise agreement, the conditions regulating compromise agreements under this Act are that: - (a) the Agreement must be in writing [and everyone is happy with that in this case; (b) the Agreement must relate to the particular proceedings [that is one of the matters in issue]; (c) the employee or worker must have received advice from a relevant independent adviser as to the terms effecting the proposed Agreement and in particular its effect on his ability to pursue his rights before an Employment Tribunal; (d) there must be in force when the adviser gives the advice, a contract of insurance or an indemnity provided for members of a professional or professional body covering the risk of a claim by the employee or worker in respect of loss arising in consequence of the advice [again no problems arises]; (e) the Agreement must identify the adviser [again no problem here]; (f) the Agreement must state that the conditions regulating compromise agreements under this Act are satisfied."

It is (b) and (f) which are said not to have been complied with.

[53]So far as (b) is concerned that has already been dealt with by an Employment Tribunal, Employment Appeal Tribunal and the Court of Appeal. I see no reason to differ from those views, albeit technically there is no res judicata as between the claimant and the second defendant, but the claimant says that those views are all undermined by the case of University of East London v Hinton. The headnote in that case contains the following holding:

"Held, allowing the appeal, that, contractually, the agreement by the very general nature of the relevant term showed the parties' intention was to settle all differences, actual and potential, arising under statute and at common law and was sufficiently wide to cover the applicant's complaint of detrimental treatment; but that section 203(3)(b) of the Employment Rights Act 1996, consistent with electorative policy of protecting employees from signing away the right to bring employment tribunal proceedings under the Act except where closely defined conditions were satisfied and with the language of the section, requiring that ‘particular proceedings’ be identified and particularised; that the key question was how the compromise agreement related to the applicant's particular complaint, and did not ’relate to’ the applicant's complaint of detrimental treatment under the Act, since it failed to state expressly the particular statutory provision or to supply a description of the legal nature or the factual basis of any proceedings ‘arising under statue’ or to mention public interest disclosures or any detriment suffered by the applicant; and, that, therefore the employment tribunal's conclusion was correct and the matter should proceed to a full merits hearing."

There is a reference to Lunt, and then:

"Per curiam. If actual proceedings are compromised it is good practice for the particulars of the proceedings and of the particular allegations made in them to be inserted in the compromise agreement in the form of a brief factual and legal description. If the compromise is of a particular claim raised which is not yet the subject of proceedings, it is good practice for the particulars of the nature of the allegations and of the statute under which they are made or for common law basis of the alleged claim to be inserted in the agreement in the form of a brief factual and legal description."

And Smith LJ said that:

"It would not be good practice for lawyers to draft a standard form of compromise agreement which lists every form of employment right known to the law. Compromise agreements should be tailored to the individual circumstances of the instant case."

[54]In my judgment, that is not inconsistent with the earlier decision. I draw comfort from the fact that Mummery LJ was a party to both of those decisions and that the later decision, Hinton, was less than three months after the earlier decision. What was said in the first decision made it clear that what the Court of Appeal were doing was approving a decision in relation to the facts of the particular case and saying the tribunal was right on the facts of this case to say that these were “particular proceedings”. The compromise agreement itself sets out the sorts of claims that are being made: see Hinton, where although a large number of detailed forms of claim were set out, it did not deal with the specific matters which were the subject of the subsequent complaint and subsequent proceedings. It deals with the generality, ie “any claims whether contractual, statute or otherwise, howsoever and wheresoever arising in connection with your employment and/or the termination thereof, including but without limiting the generality and foregoing any claim for salary, bonus or other remuneration payment in lieu of notice, redundancy pay of any form, unfair dismissal, sex, race or disability discrimination, any claim for protective award under section 189 or any other remedy available to you on the termination of your employment”. So it was clearly linking the release from settlement to the sorts of claims which arise or can arise on any termination, as opposed to the sort of claims being referred to in the Hinton case where they were whistle blowing type claims, which are certainly far from every day and which were not mentioned, and could only have been covered by the general sweeping up provision.

[55]In my judgment, in fact, there are two things that arise out of this. One, there is no breach of that particular statutory provision. Two, separately of course, any claim that could have been made in relation to a reference and failure to provide it after the execution of the Agreement would not, contrary to the Master's view, have been caught up because if there were a right to demand a reference, the subsequent refusal of a reference or provision of an inadequate reference would have been a new cause of action arising after the date of the compromise agreement and not caught by it. It would not have been something which arose out of the termination of the employment, but out of a separate breach of obligation thereafter to provide a reference.

[56]So far as the second point is concerned under clause (f), this is a matter of construction.

(a) :

"The terms set out above are subject to: (a) Your confirmation that you have taken legal advice from a solicitor as to the terms of this proposed agreement and its effect, in particular the waiver of your statutory rights; … (c) Your acknowledgment that the statutory provisions regulating agreements of this nature contained in Section 203 of the Employment Rights Act 1996, Section 77(4A) of the Sex Discrimination Act 1975, Section 72(4A) of the Race Relations Act 1986 (as amended), section 9(3) of the Disability Discrimination Act 1995 and section 288(2B) of the Trade Union and Labour Relations Consolidation Act 1992 have been complied with."

[57]There then followed the certificate on the last page of the Agreement the claimant signed:

"I confirm my acceptance of the terms above set out. The solicitor from whom I have taken legal advice in accordance with paragraph 2(a) above is ..."

[58]Mr Stanbury is identified. Mr Stanbury gives the certificate that he is the solicitor with the current practising standard, confirms that his firm has insurance and says:

"I have advised Charles Byrnell in particular in relation to any claim that he may have for unfair dismissal, sex, race or disability discrimination, breach of contract or unlawful deductions under Part 2 of the Employment Right s Act 1996 and have advised him that the effect of him/her signing this Agreement is that he is barred from pursuing any such claims."

[59]It seems to me that it was a matter of construction as to whether that is sufficient to comply with the words of the Act. The Master dealing with the matter at paragraph 17 of his judgment said:

"The claimant says section 203(3)(f) was not satisfied as there is no statement the regulating conditions were satisfied. I do not accept that paragraph 2(c) of the Agreement. That acknowledgment is, in my judgment, statement the conditions have been complied with."

He then goes on to say:

"In any event, the document as a whole shows that the conditions had in fact been satisfied."

[60]That last sentence does not seem to me to be material in determining whether or not section 203(3)(f) had been satisfied, but like the learned Master I take the view that the acknowledgment spoken to by the claimant is an acknowledgment accepted by the other side that the conditions had been complied with and, therefore, sub-sub-section (f) has been complied with.

[61]The question then is given the position in which he found himself, can any of the claims against Mr Stanbury be said to have any reasonable prospect of success? At most he was given very short notice as to the advice that he had to give and one has to look at what he advised against that background.

[62]The claimant’s second point after the point in relation to the Agreement not complying with section 203 is that he should have been advised that he was summarily dismissed. The answer to that, quite simply, is that he was not summarily dismissed for reasons I have already given.

[63]Then it was said that Mr Stanbury should have noticed and advised that the proposed settlement was less valuable than might have been obtained. So far as that is concerned, there is no material before this court, nor was there before the Master, on which it could properly be suggested that this was in fact the case, still less that there was any material before Mr Stanbury on which he could have formed that view. He advised that there was a risk either way and obviously in those circumstances there is the possibility that more might have been recovered, but there is nothing in the material that has been put forward to suggest that there is any arguable case for saying that he should have been aware that there was a substantially greater claim available in an Employment Tribunal worth more than 13 months gross salary, such that he should therefore have advised the claimant to reject the proposed compromise agreement.

[64]Then it was said that the reasons that he gave, one of which was said to be that it was easier for the claimant to settle, were extremely lightweight, almost nugatory. In my judgment, that is not an accurate statement. Undoubtedly, the settlement was easier for the claimant. Firstly, of course, it represented a bird in the hand, 13 months gross salary. It represented the opportunity to move on immediately with his life as opposed to being tied up in litigation, which might go for a very considerable period as indeed this litigation has. Litigation is, in any event, always uncertain, even assuming that there was a good claim for unfair dismissal on the basis that even if he were redundant, appropriate redundancy procedures had not been gone through. At the very most, there was a very grave doubt as to what the quantum was, but in my judgment it was clearly not negligent of Mr Stanbury to advise acceptance of the offer, nor was it negligent of him to fail to tell the claimant that he ought to go to an employment tribunal.

[65]The point of difficulty it seems to me is in relation to the reference and that was the point at which the Master found difficulty as well. The advice given was that the Agreement could and should be signed and that then could be negotiation about the reference later. This advice was given shortly before the judgment in Copse v Sun Alliance, a decision the Court of Appeal handed down on 9th May 2001, at the end of which, paragraph 207, Mummery LJ said:

"I would add a final word for the benefit of employers and employees who prefer to avoid time consuming and costly litigation about job references. In a case where the terms of an agreed resignation or a compromise and unfair dismissal claim make provision for the supply of a reference, the parties should ensure as far as possible that the exact wording of a fair and accurate reference is fully discussed, clearly agreed and carefully recorded in writing in the top three at the same time as other severance terms."

[66]That now, of course, is the sort of statement which is known to every trainee HR employee. It does not follow that back then, over eight years ago when the advice was being given, it was equally well-known, but in any event it seems to me that there are particular factors in this case. The offer was open only until that day. I appreciate that there had been the Christmas break between the time when the claimant received the draft compromise agreement and the time when Mr Stanbury advised, but the claimant has only himself to blame for putting Mr Stanbury under such severe time constraints. It might be said that Mr Stanbury could have asked for longer, but again he was presented with a draft document and was told that this was the final day. Secondly, so far as suggesting that they might seek further time in order to agree a further reference, at the time that Mr Stanbury advised he knew what the first defendant's attitude to giving any reference was.

[67]In my judgment, in those circumstances it cannot properly be said that there is a reasonable prospect of showing that Mr Stanbury was negligent in the advice that he gave in the particular circumstances of this case. It may be that other solicitors might have take the view that it was worth at least trying to get hold of Mr Clemson in his meeting or as he came out of the meeting which he apparently was in and seeing whether there could be some movement, but given the terms of the various emails that Mr Stanbury was shown, BT's position was clear and, in my judgment, it cannot be said that what Mr Stanbury did could reasonably be suggested to be negligent.

[68]That leaves, it seems to me, only two remaining allegations. The first is that Mr Stanbury ought to advise rejection of the compromise, advising non-acceptance of it and advise the claimant to go to the Employment Tribunal. The basis on which the claimant said this should have been done, apart from the suggestion that he might have recovered more by way of compensation -- and this emerged only in the course of the claimant's reply before me -- was that what he wanted was to go to the Employment Tribunal to vindicate his reputation. In my judgment, the claimant had a wholly unrealistic expectation that litigation in the Employment Tribunal would either vindicate his reputation or make him more readily employable in the future.

[69]The reputation that the claimant wanted vindicated was as to his competence. To get a vindication for that from the Employment Tribunal depended on BT or Syntegra asserting in the tribunal that the claimant was discharged for lack of competence. That was not their case. The case was that they were having to let a number of people go and he was one of those in respect of whom the difficult decision, as it was put, was taken that he was not needed. It was common ground apparently that he had only in fact worked three weeks in the last two years and if the battle ground was “competent or not”, which seems extremely unlikely given BT's position, on the claimant's own case what would have emerged when eventually the matter came to the tribunal would have been that he had been out of action for all but three weeks of the previous two years in an industry where, according to what he told me, someone who has been out of action for six months is deemed to be out of touch and to have lost their edge. It seems to me, therefore, that insofar as Mr Stanbury is alleged to have been negligent in failing to advise the claimant to reject the package and to go to the Employment Tribunal in order to vindicate his reputation, the advice that Mr Stanbury gave was not negligent, but was eminently common sense advice.

[70]That leaves the final allegation that Mr Stanbury was negligent in advising the claimant could sue at common law in relation to the provision of a reference. Assuming as a matter of evidence that this could be made out at trial, as to which there must at best be very considerable doubts. The witness statement that was provided by Mr Stanbury, in accordance with which he gave evidence at the Employment Tribunal at Mr Byrnell's behest, merely says:

"I mentioned to him the possibility of negotiating with BT a reference which would then be annexed to the agreement and Mr Byrnell signed the Agreement knowing the terms of the only reference BT was prepared to offer."

[71]It seems to me that the advice cannot properly be said to give rise to any caution of action. The compromise agreement did not prevent a claim being made for a reference, if subsequently refused. The advice left the claimant in no different position, so far as subsequent refusal of the reference is concerned, than he would have been had he not signed the Agreement. It cannot be suggested that the claimant has commenced any proceedings or acted at all vis-à-vis BT on the basis of advice that he could always sue afterwards for a reference to be given.

[72]In those circumstances, it seems to me that there is no realistic prospect of a claim in negligence being made out against Mr Stanbury and so far as the appeal by the second defendant, Mr Stanbury, against the order of the Master is concerned, it seems it me that the appeal should be allowed and the claim struck out.