Hughes-Maher & Co v Cowley & Anor [1991] UKEAT 472_90_1111

EAT
Hughes-Maher & Co v Cowley & Anor
[1991] UKEAT 472_90_1111 · 1991-11-11
MR JUSTICE TUCKER : This is an Appeal from a decision of the Industrial Tribunal held at Liverpool on 13 July 1990 whereby the Tribunal held that it did not have jurisdiction to deal with the matter, the parties already having agreed to terms of settlement.The Appellants are Hughes-Maher & Co. They were the Respondents before the Tribunal to applications by two of their former employees that they had been unfairly dismissed. When the matter was dealt with by the Tribunal the Applicants and their solicitor appeared but the present Appellants did not. The Tribunal heard evidence from an officer of the Advisory, Conciliation and Arbitration Service (ACAS) and also heard submissions from the present Respondents' solicitor and they found the following facts:(a)That an Agreement to settle the Applicants' claim was reached by the Applicants' solicitor on their behalf with the Respondents on 17 May 1990. (b)That he spoke to an ACAS officer about it and informed the officer that the matter had been settled and communicated the terms of settlement to him. (c)The Conciliation Officer was in touch with the Respondents who agreed the above mentioned terms of settlement and the Conciliation Officer then prepared a form COT 3 and sent it to the Applicants' solicitor for signature with a request that he should forward it to the Respondents. (d)The Applicants' solicitor duly signed on behalf of the Applicants. The form was sent to the Respondents who replied acknowledging receipt saying that funds had been delayed. (e)The Applicants had not received any money, nor had the Respondents returned the signed form.It is important to note that the Agreement referred to by the Tribunal was reached without the intervention or assistance of the Conciliation Officer in that it was concluded between the Applicants' solicitor on their behalf and someone with authority from the Respondents and was concluded on 17 May 1990. That fact was thereafter notified to ACAS.It is submitted that the Tribunal erred in law in that the Tribunal decided that they had no jurisdiction to deal with the matter on the grounds that an Agreement had been reached between the parties with the assistance of ACAS. There is, submit the Appellants, no evidence of such an Agreement and the evidence relied upon the Tribunal to establish such an Agreement was inadmissible. The Respondents' notices are in identical terms. They set out the grounds on which they rely in resisting the Appeal -(1)That the Tribunal heard evidence from the solicitor acting on behalf of the Respondents detailing the terms of the Agreement reached.Pausing there, that is not entirely accurate. The solicitor did not, as we believe, give evidence but he made submissions to the Tribunal. The Tribunal were not required to hear evidence from him on oath. They were fully entitled to accept what he told them.(2)The Tribunal heard evidence from a representative of ACAS who had been involved with the matter, indicating that an Agreement had been reached.(3)That the Appellant had received notice of the hearing.There is some correspondence which has been placed before us and it is important to refer to it. On 23 May 1990 solicitors acting on behalf of the Applicants wrote to the present Appellants saying this:"We enclose herewith documentation from ACAS regarding the settlement of this matter..".and in reply the present Appellants wrote the following day thanking the solicitors for their letter and saying this:
"Unfortunately, the funds refered to that will form the basis of settlement have been delayed. In the circumstances, we will contact ACAS again and take their advice with regard to signing the settlement form."
It appears to us, quite apart from any oral evidence or submissions that may have been placed before the Tribunal that in those letters there is evidence from which a concluded settlement can clearly be inferred. But the matter did not end there when it came before the Tribunal because, as had been mentioned, the solicitor for the Applicants himself told the Tribunal that such a settlement had been reached.The question is whether it was permissible for the Tribunal to receive evidence from the Conciliation Officer, having regard in particular to section 134(5) of the Employment Protection (Consolidation) Act 1978. That section sets out the functions of Conciliation Officers on receipt of a complaint under section 67 and is in these terms:
" Anything communicated to a conciliation officer in connection with the performance of his functions under this section shall not be admissible in evidence in any proceedings before an industrial tribunal, except with the consent of the person who communicated it to that officer."
It is also important to have regard to the provisions of section 140 of the same Act which deals with the restrictions on contracting out of the provisions of the Act. Sub-section 1 provides:
"(1)Except as provided by the following provisions of this section, any provision in an agreement (whether a contract of employment or not) shall be void in so far as it purports - (a).. (b)to preclude any person from presenting a complaint to, or bringing any proceedings under this Act before, an industrial tribunal"

but subsection (2) provides that subsection (1) shall not apply at (g)

"to any agreement to refrain from instituting or continuing any proceedings before an industrial tribunal where a conciliation officer has taken action in accordance with section 133(2) or (3)".What is the position here? It is undoubted that a concluded agreement was reached between the Applicants' solicitor and a representative of the Respondents. It is undoubted that the Conciliation Officer took action in accordance with section 133(2) or (3). That the Appellants concede. And so the Industrial Tribunal was entitled to say that they had no jurisdiction if they were assured of the fact that a concluded agreement to settle had been reached.Was there evidence of that which was capable of being placed before them? Our view is that quite apart from anything that may have been said by the Consiliation Officer there was sufficient evidence upon which the Tribunal could act in declining jurisdiction and we refer to the correspondence and to the submissions of the solicitor for the Applicants.Was the Tribunal entitled to receive evidence in addition from the Conciliation Officer, having regards to the provisions of section 134(5)? We are clear in our view that they would not have been entitled to receive any evidence from the Conciliation Officer relating to any efforts on his part to promote a settlement or to any negotiations which took place between the parties prior to a settlement; that those are confidential matters and it would not be in the interest of public policy that anything said in the course of such negotiations should be receivable in evidence, it would undermine the confidence which both sides should have in the good services of ACAS and their officers and that is what, in our view, section 134(5) refers to. It refers to the performance of the officer's functions under this section but it does not, in our view, refer to the ability of the officer to give evidence of the fact that a concluded agreement has been reached. Of that he is quite at liberty of giving evidence. What he may not do and what he did not do in the present proceedings is to refer to any preceeding negotiations.We are confirmed in that view by the decision of this Tribunal presided over by Mr Justice Browne-Wilkinson as he then was, in the case of GILBERT v KEMBRIDGE FIBRES LTD [1984] ICR 188 . At page 191 of the decision Mr Justice-Browne Wilkinson referred to the position of a Conciliation Officer. He had carefully received evidence from a Mr Syson dealing with the position of conciliation officers. It is clear from that case that Mr Justice Browne-Wilkinson and the Members who sat with him were perfectly prepared to hold, and did hold that the Conciliation Officer was a competent witness to give evidence of a concluded agreement. Although no express reference is made to section 134(5), it is inconceivable that such a distinguished Tribunal would have failed to take account of it. They must have done so.In our view the Tribunal was perfectly entitled to receive the evidence they did and this Appeal is accordingly dismissed.