Clyde & Co LLP & Anor v Winkelhof [2011] EWHC 668 (QB)

[2011] EWHC 668 (QB)Case No IHQ/11/0147
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/03/2011
Before
THE HONOURABLE MRS JUSTICE SLADE DBE
Between
Clyde & Co LLPClaimantsJohn MorrisClaimantKrista Bates van WinkelhofDefendant
Chris Quinn (instructed by Clyde & Co LLP) for ClaimantsDavid Craig (instructed by Mishcon de Reya) for DefendantHearing Hearing date: 11 th March 2011
Judgment
[1]The Claimants applied for a mandatory injunction requiring the Defendant, a solicitor and former Member of the First Claimant, to “forthwith either apply for a stay of her claim in the Employment Tribunal (Case No 2200549/2011) or… to consent to an application for such a stay by the Claimants so as to allow for an arbitration to take place between the parties before any further steps are taken in respect of that claim.” In circumstances which I will outline below, during the course of the hearing Mr Quinn, counsel for the Claimants, applied for and was granted leave to amend the Claim Form and Order sought. The relief now claimed is an Order that the Defendant apply for or consent to an application for a stay of her proceedings before the Employment Tribunal “so as to allow for compliance with the Dispute Resolution Procedure set out in Article 41 of the Members Agreement which the Defendant entered into on 1st February 2010 as amended and restated on 25th June 2010.”[2]The hearing before me is for determination both of the application for a mandatory injunction and the Claimants’ Part 8 claim in which the only relief sought is such an injunction. The wording of the Claim Form and that of the Application Notice is similar. The basis of the claim and the application is the same. The arguments of the parties and the reasons for the judgment are applicable to both the application and the claim.[3]The First Claimant is a firm of solicitors operating as a limited liability partnership. The Second Claimant is a Senior Equity Partner of the First Claimant. The Defendant commenced employment as a solicitor with the First Claimant on 1st February 2010 when it acquired the team of another firm in which she was a partner. The First Claimant also acquired the firm’s corporate practice and the continuation of a joint venture agreement with a law firm in Tanzania. On 1st February 2010 the Defendant entered into a Deed of Adherence to the First Claimant’s Members Agreement dated 28th June 2008 which was subsequently amended and restated on 25th June 2010 (‘the Agreement’). Clause 41 of the Agreement provided as follows:
“41.1 If at any time there is a dispute, difference or question that shall arise between the Members or between the LLP and the Members (including any Outgoing Member or his personal representatives), or any of them, touching the membership of the LLP…or the rights and liabilities of the Members…(together ‘Referred Matters’), then the Member or Members involved in such dispute, difference or question (‘parties’) shall deal with it as provided in this clause and clause 41.2 below. The matter shall be immediately referred by any of the parties to the Management Board requiring it to meet and to make a decision on the relevant matter within 28 days of the matter being so referred to the Management Board (“Decision Period”). The Management Board shall meet and discuss the relevant matter with a view to resolving the issue in a sensible and fair manner. If the Management Board reaches agreement with the parties within the Decision Period the Members agree that such agreement be promptly implemented. If the Management Board fails to agree on any matter within the Decision Period or if the dispute is with the Management Board itself then clause 41.2 below shall apply. 41.2 If a dispute still remains after the application of 41.1 above, including any question regarding the Referred Matters or the application of this dispute resolution procedure, then the parties agree first to refer the matter to the Centre for Dispute Resolution (CEDR) in an attempt to settle the dispute in good faith by Alternative Dispute Resolution (ADR). If the dispute is not settled within 30 days of the request to CEDR by one of the parties, or such further period as the parties shall agree in writing, either party may require that the dispute be referred to and finally resolved under the Rules of the London Court of International Arbitration, which Rules are deemed to be incorporated by reference into this clause 41.2, save that the parties preserve the right to appeal or to refer to the English Courts on questions of law which shall have jurisdiction in such circumstances. The Members and the LLP reserve all their respective rights in the event that no agreed resolution shall be reached in the ADR procedure and none of them shall be deemed to be precluded from taking such interim formal steps as may be considered necessary to protect such person’s position while the ADR procedure is pending.”
[4]The Defendant worked for the First Claimant in Tanzania and in London. On 13th January 2011 the Defendant was expelled from Membership of the First Claimant.[5]On 11th February 2011 the Defendant presented a claim to an Employment Tribunal (‘the ET1’) in which she claimed that she had been discriminated against by the First and Second Claimants on grounds of her sex and/or pregnancy. She also claimed that she had been subjected to a number of detriments, including being expelled from the First Claimant, because in November 2010 she had made a number of protected disclosures within the meaning of Section 43A of the Employment Rights Act 1996 (‘ERA’).[6]The Claimants sought and obtained from the Employment Tribunal an extension of time in which to serve their grounds of resistance to the claim (‘the ET3’). On 7th March 2011 the Claim Form and Application Notice were issued in these High Court proceedings.

The Relevant Statutory Provisions

[7]Equality Act 2010 (‘EA’) 120(1) An employment tribunal has, subject to section 121, jurisdiction to determine a complaint relating to—(a) a contravention of Part 5 (work); … 144(1) A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act. … (4) This section does not apply to a contract which settles a complaint within section 120 if the contract— (a) is made with the assistance of a conciliation officer, or(b) is a qualifying compromise contract. … (6) A contract within subsection (4) includes an agreement by the parties to a dispute to submit the dispute to arbitration if— (a) the dispute is covered by a scheme having effect by virtue of an order under section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992, and (b) the agreement is to submit the dispute to arbitration in accordance with the scheme. (a) a contravention of Part 5 (work); (a) is made with the assistance of a conciliation officer, or (b) is a qualifying compromise contract. (a) the dispute is covered by a scheme having effect by virtue of an order under section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992, and (b) the agreement is to submit the dispute to arbitration in accordance with the scheme. Employment Rights Act 1996 (‘ERA’) 203(1) Any provision in an agreement (whether a contract of employment or not) is void in so far 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. (2) 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, and (f) does not apply to any agreement to refrain from instituting or continuing. . . any proceedings within the following provisions of section 18(1) of the Employment Tribunals Act 1996 (cases where conciliation available)— (i) paragraph (d) (proceedings under this Act), … (3) For the purposes of subsection (2)(f) the conditions regulating compromise agreements under this Act are that— (a) the agreement must be in writing, (b) the agreement must relate to the particular proceedings,(c) the employee or worker must have received advice from a relevant independent adviser as to the terms and effect of 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 profession or professional body, covering the risk of a claim by the employee or worker in respect of loss arising in consequence of the advice,(e) the agreement must identify the adviser, and(f) the agreement must state that the conditions regulating compromise agreements under this Act are satisfied. … (5) An agreement under which the parties agree to submit a dispute to arbitration— (a) shall be regarded for the purposes of subsection (2)(e) and (f) as being an agreement to refrain from instituting or continuing proceedings if— (i) the dispute is covered by a scheme having effect by virtue of an order under section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992, and (ii) the agreement is to submit it to arbitration in accordance with the scheme, but (b) shall be regarded as neither being nor including such an agreement in any other case. (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. … (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, and (f) does not apply to any agreement to refrain from instituting or continuing. . . any proceedings within the following provisions of section 18(1) of the Employment Tribunals Act 1996 (cases where conciliation available)— (i) paragraph (d) (proceedings under this Act), (a) the agreement must be in writing, (b) the agreement must relate to the particular proceedings, (c) the employee or worker must have received advice from a relevant independent adviser as to the terms and effect of 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 profession or professional body, covering the risk of a claim by the employee or worker in respect of loss arising in consequence of the advice, (e) the agreement must identify the adviser, and (f) the agreement must state that the conditions regulating compromise agreements under this Act are satisfied. (a) shall be regarded for the purposes of subsection (2)(e) and (f) as being an agreement to refrain from instituting or continuing proceedings if— (i) the dispute is covered by a scheme having effect by virtue of an order under section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992, and (ii) the agreement is to submit it to arbitration in accordance with the scheme, but (b) shall be regarded as neither being nor including such an agreement in any other case. Directive 2006/54/EC Article 17 1. Member States shall ensure that, after possible recourse to other competent authorities including where they deem it appropriate conciliation procedures, judicial procedures for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended. Article 17 Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 (‘the ET Rules’) 10(1) Subject to the following rules, the Employment Judge may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit. Subject to the following rules, orders may be issued as a result of an Employment Judge considering the papers before him in the absence of the parties, or at a hearing (see regulation 2 for the definition of “hearing”). (2) Examples of orders which may be made under paragraph (1) are orders — … (h) staying (in Scotland, sisting) the whole or part of any proceedings. (h) staying (in Scotland, sisting) the whole or part of any proceedings.

The Contentions of the Parties

[8]Mr Quinn for the Claimants applied for an Order the effect of which would be to obtain a stay of the proceedings before the Employment Tribunal. He made clear that because an Employment Tribunal was not a ‘court’ within the meaning of the Arbitration Act 1996 Section 9, that Act was not relied upon. Rather the Claimants relied on the inherent power of the Court to stay proceedings as explained by Waller LJ in Ahmad Al-Naimi v Islamic Press Agency Inc [2000] 1 Lloyd’s Rep 522 at page 525. Having referred to the prerequisites of Section 9 of the Arbitration Act 1996 Waller LJ observed:
“But a stay under the inherent jurisdiction may in fact be sensible in a situation where the Court cannot be sure of those matters but can see that good sense and litigation management makes it desirable for an arbitrator to consider the whole matter first.”
[9]It was contended on behalf of the Claimants that the stay of proceedings before the Employment Tribunal was appropriately made to this Court. Mr Quinn contended that whilst an application for a stay could be made to the Employment Tribunal, they were not accustomed to accommodating urgent applications save for claims for interim relief pursuant to ERA Section 128.[10]Whilst Mr Quinn recognised that this Court had no jurisdiction to order a stay of proceedings before the Employment Tribunal, he submitted there was precedent for requiring a party to a contract so to act so as to achieve that outcome. He relied on the judgment of Laddie J in Chorion Plc and others v David Lane [CH-1999 00233] in which he made an Order that the Defendant apply for a stay of his complaints of unfair dismissal or do consent to the plaintiff’s application for a general adjournment of those proceedings pending a determination of the action between the parties in the Chancery Division. Laddie J reached his conclusion that such an Order should be granted because: “…it would be wrong for essentially the same serious issues to be run in two separate tribunals” (paragraph 34).[11]Mr Quinn contended that by applying for an extension of time to submit their ET3 in the proceedings before the Employment Tribunal the Claimants are not precluded from seeking a stay of those proceedings. He pointed out that the application for a stay was not made under Section 9 of the Arbitration Act but under the inherent jurisdiction of the Court.[12]The Claimants contended that the matters of which the Defendant complains in her ET1 fall within the scope of Clause 41 of the Agreement. In paragraph 23 of his skeleton argument Mr Quinn writes:
“The arbitration clause does not offend either Section 203 of the ERA or Section 144 of the EA in that it does not on any view purport to ‘exclude’ or ‘limit’ the operation of the ERA or to ‘preclude’ D from bringing an ET claim under the ERA at all but instead simply requires her to comply with Article 41 before she does so.”
[13]Further, Mr Quinn contended that Clause 41.2 made it clear that the members’ rights were reserved in the event that no agreement was reached.[14]As the submissions developed during the course of the hearing, Mr Quinn agreed that the provision in Clause 41 that the dispute be finally resolved by arbitration would fall foul of the contracting out prohibition in the EA and the ERA. However he pointed out that the arbitration step was not mandatory. Either party could require the dispute to be referred to arbitration. It was in light of the proper recognition that a stay pending arbitration would fall foul of the contracting out provisions of the EA and the ERA that Mr Quinn applied for and was given leave to amend. He took full responsibility for the original wording of the claim form and draft Order attached to the Application Notice and said that the wording had not reflected his intentions. These were now better reflected in the amended wording.[15]Mr Quinn sought to distinguish the contracting out provisions of Section 203 of the ERA and Section 144 of the EA contending that whereas Section 203 ERA applies to prohibit any provisions which preclude a person from bringing any proceedings under that Act, Section 144 EA contains no such provision. It merely renders unenforceable a contract which purports to exclude or limit a provision of or made under that Act.[16]At first Mr Quinn contended that Section 203(1) of the ERA rendered void an agreement precluding a person from bringing proceedings under that Act but not from continuing such proceedings which is this case. However in the light of Section 203(2)(e) which expressly excludes from the operation of subsection (1) any agreement reached with the assistance of a conciliation officer to refrain from continuing proceedings as well as instituting them and in the light of the judgment of the Employment Appeal Tribunal in Naqvi v Stephens Jewellers Ltd [1978] ICR 631, he rightly conceded that ERA Section 203 renders void an agreement which precludes a person from continuing proceedings under that Act. However he maintained that Clause 41 does not have that effect.[17]Mr Quinn contended that Clause 41 did not ‘preclude’ a Member from continuing proceedings before an Employment Tribunal. All that it does is to require the Member to deal with their dispute in accordance with the procedures there set out before pursuing such proceedings. He contended that by reason of the last sentence of Clause 41.2, the Defendant’s right to pursue her claims before the Employment Tribunal was preserved in the event that no agreed resolution was reached in the ADR procedure.[18]Mr Quinn contended that the relief sought by the Claimants was consistent with the overriding objective to achieve resolution of disputes out of court. He also contended that to require the Defendant to comply with the steps set out in Clause 41 would lead to speedier resolution than would be achieved in Employment Tribunal proceedings. Further it would not be more costly for the Defendant. Bearing in mind the practicalities of listing a hearing which would be likely to last for ten days, complying with Clause 41 in the meantime would be unlikely to lead to delay.[19]David Craig for the Defendant submitted that a stay pending compliance with Clause 41 including the final step of arbitration should not be granted. The provision for final determination of the Defendant’s complaints by arbitration renders Clause 41 void and unenforceable. It falls foul of ERA Section 203 and EA Section 144.[20]The Claimants seek to enforce the entirety of Clause 41. Mr Craig submitted that the reference to reservation of rights in 41.2 is to protect the ability of the parties to take ‘interim formal steps’. This does not preserve the right of a Member to commence or continue proceedings before an Employment Tribunal.[21]ERA Section 203 clearly renders void any provision precluding a claimant from continuing proceedings under that Act. Although the EA does not include the equivalent of ERA Section 203(1)(b), Mr Craig contended that it is inconceivable that the EA would not give equivalent protection particularly bearing in mind that the EA implemented the EU right to equal treatment regardless of sex. Even if she could ultimately pursue a claim in the Employment Tribunal, requiring the Defendant to comply with Clause 41 would put a non-statutory hurdle in her path. It would inhibit the enforcement of her rights by the mechanism provided by the legislation.[22]Mr Craig pointed out that where the legislature intended an agreement to submit to arbitration to be enforceable it made express provision to that effect. The restriction on contracting out in Section 203(1) ERA does not apply to an agreement to refrain from instituting or continuing proceedings and to submit to arbitration where the dispute is covered by a scheme having effect by virtue of an order under Section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992 and the agreement is to submit the dispute to arbitration in accordance with such a scheme. By ERA Section 203(5)(b), other arbitration agreements are not regarded as being or including an agreement to refrain from instituting or continuing Employment Tribunal proceedings under ERA. An agreement to submit a dispute regarding a complaint of breach of EA to arbitration under such a scheme is treated as an enforceable agreement. Agreements to submit to arbitration other than those expressly referred to in the legislation are not legally enforceable.[23]Mr Craig contended that the requirement in Clause 41 to submit disputes to arbitration limited the chances of the Defendant obtaining certain remedies. An Employment Tribunal can make recommendations that a Respondent take certain action including reinstatement.[24]It was submitted by Mr Craig that certain claims made by the Defendant in her ET1 do not fall within the scope of Clause 41. He contended that the claim of sex discrimination against the Second Claimant would not fall within the scope of the Clause nor would that of being subject to a detriment for making a protected disclosure.[25]Mr Craig submitted that Section 9 of the Arbitration Act 1996 identifies and limits the circumstances in which the High Court should, save in exceptional circumstances, grant a stay of proceedings before it in support of arbitration. There is no power under the Arbitration Act to stay proceedings before an Employment Tribunal.[26]Whilst a court has power under the inherent jurisdiction to stay its own proceedings in support of arbitration, Mr Craig contended that the circumstances in which it would be appropriate to do so are limited. He referred to Konkola Copper Mines v Coromin Ltd [2006] 1 Lloyd’s Rep 410 in which it was observed by the Court that a stay of the court’s own proceedings in support of an arbitration elsewhere ‘required rare and compelling circumstances’. Mr Craig also relied upon Reichhold Norway ASA v Goldman Sachs International [2000] 1 WLR 173 to similar effect.[27]Mr Craig contended that had Konkola Copper Mines and Reichhold Norway been decided and available to Laddie J when considering Chorion it is extremely doubtful that he would have decided to grant the relief claimed in that case. Such doubts are reinforced by the judgment of the European Court of Justice in West Tankers Inc v Allianz SpA [2009] 1 AC 1138 in which the Court ruled in paragraph 29 of their judgment that it was inappropriate for the court in England to have granted an anti-suit injunction to stay proceedings in Sicily.[28]In any event Mr Craig submitted that Chorion was distinguishable from the present case. In Chorion there were two concurrent sets of proceedings in the Chancery Division and in the Employment Tribunal. There was a risk of inconsistent findings of fact in the two sets of proceedings. In this case there was no risk of conflicting findings of fact or law. Further this Court should not interfere with the exercise of discretion to grant a stay by the Employment Tribunal which is seized of the Defendant’s claims.[29]It was contended on behalf of the Defendant that even if this Court were able to grant the injunctive relief sought it should not do so. It is for the Employment Tribunal to decide whether to stay its own proceedings. On the case advanced by the Claimants, a stay would be unlikely to obviate the need for proceedings in the Employment Tribunal. The Claimants maintain that the Defendant’s claim could be pursued there should ADR prove unsuccessful. A stay of proceedings which may be revived late would lead to delay and duplication of costs. The Claimants have taken the step in the Employment Tribunal proceedings of asking for and obtaining an extension of time to serve their ET3. This would have disentitled them to a stay had one been applied for pursuant to the Arbitration Act 1996 Section 9. As a matter of discretion the decision whether to stay proceedings before it should be left to the Employment Tribunal.

Discussion and Conclusion

[30]The Part 8 claim and the application for injunctive relief are entirely co-extensive. The only relief sought in proceedings in the High Court is a mandatory injunction requiring the Defendant to apply for or consent to a stay of her claims of sex discrimination and unlawful detriment by reason of ‘whistleblowing’ pending compliance with the Dispute Resolution procedure set out in Clause 41 of the Members’ Agreement.

The Members’ Agreement

[31]Clause 41 applies to ‘Outgoing Members’ as well as to Members. An Outgoing Member means a Member who ceases to be a Member for whatever reason. Accordingly Clause 41 applies to the Defendant notwithstanding that she was expelled from membership of the First Claimant on 13th January 2011.[32]Clause 41 applies to disputes which ‘shall arise between the Members or between the LLP and the Members (including any Outgoing Member)’ concerning various matters including ‘the rights and liabilities of the Member’ (together called ‘Referred Matters’). In my judgment the scope of the Clause is broad and includes all rights and liabilities of Members including statutory rights.[33]Clause 41 requires Members to deal with any dispute regarding a Referred Matter as provided by Clauses41.1 and 41.2. It is therefore mandatory for the parties to refer a dispute to the Management Board which must meet within and take a decision within 28 days of the reference. If no agreement is reached within that period between the parties and the Management Board Clause41.2 applies and the parties agree to refer the matter to the Centre for Dispute Resolution (‘CEDR’) in an attempt to settle by ADR. If the dispute is not settled within 30 days of the request to CEDR or a further agreed period either party may require that the dispute be referred to arbitration.[34]In accordance with Clause 41.2 the Claimants have the unfettered right to refer the Defendant’s complaints to arbitration. Such arbitration would be the ‘final resolution’ of the matters. The only recourse a party may have thereafter is a right of appeal or reference on question of law to the courts which have jurisdiction in these circumstances.[35]Whilst the Members and the LLP reserve all their rights in the event that no agreed resolution is reached, that is not the case following an award in the arbitration. Thus if no agreement is reached at the ADR stage the Claimants could elect for and pursue arbitration to its conclusion. In that event the terms of Clause 41.2 would preclude the Defendant from continuing with her claims before the Employment Tribunal. The reservation of rights including taking ‘interim formal steps’ as may be considered necessary to protect such person’s position applies during the ADR procedure and not after that procedure has been exhausted.[36]Thus if no agreement is reached with the Defendant in ADR the Claimants are able to trigger an arbitration of the dispute which would result in the ‘final’ determination of her complaints. It is not to the point that the Claimants may not take this step. When asked whether he was seeking to enforce all of Clause 41 or to ‘blue pencil’ out the arbitration provision, Mr Quinn rightly replied that the enforceability of Clause 41 has to be judged as a whole.[37]Since Clause 41 includes a requirement to submit to arbitration at the option of a party to a dispute which is not settled by ADR and since the result of such arbitration is to be a final resolution of a dispute, its enforceability to prevent the continuation of the Defendant’s claims before the Employment Tribunal of sex and pregnancy discrimination and detriment because of her ‘whistleblowing’, depends upon whether it is rendered void by reason of EA Section 144 and ERA Section 203 respectively.[38]The Defendant’s whistleblowing claim is brought under ERA. Mr Quinn rightly agreed that ‘bringing any proceedings’ in ERA Section 203 included ‘continuing any proceedings’. In considering similar language relating to unfair dismissal the Employment Appeal Tribunal in Naqvi Stephens Jewellers Ltd [1977] ICR 631 held at page 637E:
“We find ourselves constrained by those considerations to regard the phrase ‘bringing any proceedings before an industrial tribunal’ as being intended to be wide enough to comprehend proceeding with a complaint which has been presented [under paragraph 17]…”
[39]The provision in Clause 41 of the Agreement that arbitration is a final resolution of a Member’s dispute subject only to an appeal on a question of law does in my judgment preclude continuation of proceedings before an Employment Tribunal. The arbitration provided for by Clause 41 is not one falling within ERA Section 203(5). Mr Quinn has not sought to sever the arbitration provision in Clause 41 or sought enforcement only of its ADR requirements. The provision for binding arbitration is clearly rendered void by operation of ERA Section 203. Accordingly the Claimants are not entitled to injunctive relief to compel the Defendant to comply with Clause 41 and not to continue with her claim before the Employment Tribunal under ERA.[40]The relief sought by the Claimants was to bring about a stay of proceedings before the Employment Tribunal. Even if the relief sought had been to enforce compliance with the ADR provisions of Clause 41 and not the arbitration provision, if granted it would have brought the continuation of the proceedings to a halt albeit that the Tribunal proceedings could have been revived if the Claimants were not to seek arbitration. However the continuation of proceedings would be precluded during the period of delay by reason not of their proper conduct but by operation of an agreement. Unless freely entered into where, as provided by ERA Section 203(2)(e), a conciliation officer has taken action under Section 18 of the Employment Tribunals Act 1996, in my judgment such an agreement would be rendered unenforceable by Section 203.[41]The wording of EA Section 144 is different from that of ERA Section 203. Section 144(1) renders unenforceable a contract which purports to ‘exclude or limit a provision of or made under’ the EA. But for EA Section 144(4), Section 144(1) would render unenforceable a contract settling a complaint under Section 120 which is made with the assistance of a conciliation officer or is a qualifying compromise contract. Section 120 confers jurisdiction on Employment Tribunals to determine complaints, amongst others, of sex discrimination, by a Member of an LLP. Thus Section 144(1) is not just concerned with agreements to exclude the right not to be discriminated against on grounds of sex as was submitted by Mr Quinn but also with agreements to exclude the enforcement of those rights in proceedings before an Employment Tribunal.[42]In my judgment on its proper construction, Section 144(1) renders unenforceable an agreement to preclude or limit the continuation of sex discrimination proceedings before an Employment Tribunal unless reached in accordance with Section 144(4). It would be surprising if this were not so. There would be no discernable rationale for rendering unenforceable such agreements reached before proceedings have commenced but enforceable once an ET1 had been lodged. Further it would be surprising if employees were given lesser protection in this regard when pursuing discrimination claims under the EA than when pursuing claims under the ERA.[43]The EA is the continuation of the previous domestic law implementation of EU obligations including those in relation to sex discrimination now included in Directive 2006/54/EC (‘the ETD’). Article 17 of the ETD requires member states to ensure access to judicial procedures after possible recourse, where the member state deems it appropriate, to conciliation procedures. The legislature has specified in EA Section 144 those appropriate procedures. They are a contract which settles a complaint under Section 120 if the contract is made with the assistance of a conciliation officer or is a qualifying compromise contract. An agreement to submit the dispute to arbitration is only enforceable if it satisfies the conditions in Section 144(6).[44]Accordingly in my judgment Clause 41 cannot be relied upon to enforce a stay of proceedings brought by the Defendant in which she complains under EA of sex and pregnancy discrimination or under ERA of suffering a detriment by reason of her making a protected disclosure. This is sufficient to dismiss the claim and the application but I will briefly address the arguments on Chorion and the exercise of discretion.

The Order Sought: Chorion

[45]Not only was the application for a stay of proceedings before the Employment Tribunal made to this Court but the Order sought was to require the Defendant to apply to the Tribunal for or to consent to a stay. Mr Quinn told me that the Claimants had not made an application to the Employment Tribunal for a stay. The reasons advanced for not doing so were unsupported by evidence. It was suggested that Tribunals were unused to accommodating urgent applications. However there was no evidence that an enquiry had been made as to when such an application could be accommodated.[46]Employment Tribunals have control over proceedings before them. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (‘the ET Rules’) provide by Schedule 1 Rule 10(2)(h) for an Employment Judge to stay the whole or any part of proceedings before them. The exercise of any power under the rules is expressly subject to the overriding objective set out in Regulation 3. There is a route for the Claimants to take to apply for a stay of the Employment Tribunal proceedings but they have not used it.[47]Whilst the Court has an inherent jurisdiction to stay its own proceedings in support of arbitration, no authority has been cited in support of a proposition that a court exercising one jurisdiction can order a stay of proceedings in another. The judgment of the European Court of Justice in West Tankers Inc v Allianz SpA [2009] 1 AC 1138 has underscored the inappropriateness of such an order. The Court ruled in paragraph 29 of its judgment that it was inappropriate for the court in England to have granted an anti-suit injunction restraining proceedings in Sicily.[48]Mr Quinn recognised that this Court does not have jurisdiction to order a stay of proceedings before the Employment Tribunal. The Claimants seek to achieve that result by seeking an Order against the Defendant to compel her to apply for or consent to such an Order. The only authority cited by Mr Quinn in support of such an Order is the unreported judgment of Laddie J in Chorion. In that case a former executive director brought a claim for unfair dismissal in the Employment Tribunal. Chorion brought proceedings in the Chancery Division alleging wrongful acts committed by him while he was a senior executive. There was an overlap in the issues to be tried in both sets of proceedings. Laddie J held at paragraph 2 of his judgment that the alleged potential overlap between the issues which would be decided in the action in the Chancery Division and those which were to be decided before the Employment Tribunal lay at the heart of the applications before him. Laddie J considered Sears Plc v Sears Roebuck & Co and others [1993] RPC 385 in which Lindsay J granted an Order against the plaintiff requiring it not to proceed with its case before the Trade Mark Registry until the determination of their High Court action. Lindsay J said:
“…the court should look to the two matters broadly and ask whether the matters are substantially the same.”
[49]Laddie J directed himself to consider the facts of the case before him. He held at paragraph 34:
“I have come to the conclusion, notwithstanding the powerful arguments advanced by Mr Collins, it would be wrong for essentially the same issues to be run in two separate tribunals. It seems to me that in view of the allegations of dishonesty which are to be found permeating the whole of this dispute it is right and proper that the issues should be determined in one set of proceedings. I am of the view that the preferable forum is the High Court.”
[50]It may well be, as Mr Craig submitted, that Laddie J would not have granted a stay of Employment Tribunal proceedings if West Tankers Inc v Allianz had been decided and placed before him. In any event the facts of this case are materially distinguishable from Chorion. Unlike Chorion there are no proceedings in the High Court other than proceedings to obtain a stay of the Employment Tribunal proceedings. The very basis for the decision in Chorion is absent. There is no risk of inconsistent findings of fact in the two jurisdictions and there are no issues to be determined which are common to both sets of proceedings. There are no issues to be determined in these High Court proceedings other than the issues in the current hearing. It is not necessary for me to decide whether Chorion was rightly decided although there are justifiable doubts as to whether it was, particularly having regard to the subsequent authorities referred to above. In any event, as explained, the rationale for the decision in Chorion is not present in this case. There is no basis for this Court to make an Order requiring the Defendant to apply for or consent to a stay of her claims before the Employment Tribunal.

Discretion

[51]Even if there were a proper basis for contending that Clause 41 was enforceable in the circumstances of this case and for making an Order in the terms sought it would not be appropriate to exercise a discretion to grant the mandatory injunctions sought.[52]No good reason has been advanced as to why the appropriate route of applying to the Employment Tribunal for obtaining a stay has not been taken. One of the arguments advanced by Mr Quinn for a stay of the Tribunal proceedings was that compelling compliance with Clause 41 would not cause delay. He said that the hearing before the Tribunal would be likely to last for ten days and that a hearing of such a length would be unlikely to be listed for about 18 months. If this is so, there is no need for an injunction to stay the proceedings. Even if enforceable, the ADR stage of Clause 41 could be completed before the hearing. The outcome of the arbitration stage would be unenforceable.[53]The Claimants’ claim made in the Claim Form and their application are dismissed.

Cited in 2 later judgments