Lothian v CPK Construction Ltd & Anor [1997] UKEAT 1371_95_2107

EAT
Lothian v CPK Construction Ltd & Anor
[1997] UKEAT 1371_95_2107 · 1997-07-21

JUDGE PETER CLARK :

On 18 June 1994 the Appellant presented an Originating Application to the Central Office of Industrial Tribunals, complaining of unfair constructive dismissal and unlawful racial discrimination against the Respondent, CPK Construction Ltd and Queensmead NW8 Ltd, by whom he had been employed as a night porter from 5 December 1990 until 18 March 1994. In that document he named his representative as the trade union UNISON.On 18 August 1994, on a reference by the Holborn Citizens Bureau, he consulted Ms Iva Bouda, a Solicitor with Camden Tribunal and Rights Unit Ltd (Camden). Camden thereafter represented him. At all relevant times the Respondent was represented by Ms Sophie Woodfield, a Personnel Consultant at the Legal Protection Group Ltd (LPG).In November 1994 LPG made an offer in settlement of the Appellant's claim of £700. That offer was rejected.In February 1995 LPG increased that offer on behalf of the Respondent to £3,000. By this stage an ACAS Officer, Mr Derek Mills, was involved in the negotiations. It was Mr Mills who communicated that offer to Ms Bouda, the Appellant's representative, on 8 or 9 February. In an affidavit sworn on 1 November 1995 Ms Bouda states that she passed on the offer to the Appellant by telephone. He agreed to accept the offer, saying that he wanted the case resolved so that he could get on with his college studies. She telephoned Mr Mills, informing him that the Appellant had accepted the offer. That message was relayed to Ms Woodfield by Mr Mills, and he asked her to draft a form COT3. She did so, and on 9 February faxed Mr Mills a draft in the following terms:
"We the undersigned have agreed: The Respondent agrees to pay to the Applicant the sum of £3,000 (three thousand) in full and final settlement of all claims arising out of his contract of employment or its termination, with the exception of pension or industrial injury claims.
The above sum to be paid within 14 days of the Respondent's receipt of the signed COT3 form."Ms Bouda then went on holiday, leaving her colleague, Ms Facer, to obtain the Appellant's signature to the COT3.In her affidavit, also sworn on 1 November 1995, Ms Facer deposes to a telephone conversation with the Appellant on 21 February 1995, during which he appeared angry about his former employer's treatment of him, but asked for the COT3, which was read over the telephone to him, to be sent to him and he would sign it. It was sent on 21 February.The Appellant never did sign the COT3. The matter came on for a preliminary hearing before an Industrial Tribunal sitting at London (North) and chaired by Mrs B.A. Calvert QC on 10 March 1995. The issue was whether the IT1 had been presented in time. The Tribunal found that it had, but observed that the Respondent, which did not appear, was arguing that a settlement had been reached through ACAS and that the Tribunal could not hear the case.The question of whether or not the complaint had been settled came on for hearing before a Chairman, Mr D.H. Roose, sitting alone at London (North) on 1 November. The Chairman found that agreement had been reached through ACAS and that the Tribunal was thereby precluded from hearing the complaint. Under what is now Section 203(2)(e) of the Employment Rights Act 1996 , the general provision that agreements to preclude a person from bringing proceedings under the employment protection legislation are void, does not apply to any such agreement where a Conciliation Officer has taken action under Section 18 of the Industrial Tribunals Act 1996 . The relevant provision here is Section 18(4) of the Industrial Tribunals Act.In reaching that decision the Chairman referred to the Employment Appeal Tribunal decision in Gilbert v Kembridge Fibres Ltd [1984] ICR 188. At paragraph 3 of his Extended Reasons dated 13 November 1995 he said this:
"3 In this case I have been referred to Gilbert v Kembridge Fibres Ltd [1984] IRLR 52 in which the Employment Appeal Tribunal found that an appellant was precluded from complaining of unfair dismissal by virtue of the enforceable settlement of his claim reached with his former employers through the intermediary of an ACAS Conciliation Officer notwithstanding that the form COT3 had never been signed by both parties. The appellant's submission that he could not be bound legally by a compromise of his claim because he had not signed the COT3 on which the conciliation officer had reduced the terms of the oral settlement between the parties to writing could not be accepted. Legal agreements can be made without their terms being reduced to writing. At the relevant time the Applicant was being represented by Camden whose interest was registered with all parties including ACAS. In early February 1995 Camden had ostensible authority from the Applicant to deal with the matter on his behalf. I am satisfied that there was a binding agreement made between Camden and the Group through the intermediary of Mr Mills the ACAS Conciliation Officer assigned to the case. While I appreciate that the Applicant has a problem with the concept of ostensible authority and relies on the fact that the COT3 remained unsigned his problem if indeed he still has one is with Camden and not with the Respondent in the forum of the Industrial Tribunal."
As to the question of ostensible authority, although not specifically cited by the Chairman, we have considered the case of Freeman v Sovereign Chicken Ltd [1991] ICR 853. In that case an agreement to settle the Appellant's complaint was reached between an adviser acting on the Applicant's behalf from the Citizens Advice Bureau and the Respondent's Solicitor, following intervention by an ACAS officer. A form COT3 was signed by both representatives. The Applicant contended that her adviser had no authority to sign the form on her behalf. That contention was rejected by both the Industrial Tribunal and the Employment Appeal Tribunal. The Appeal Tribunal held that the Applicant's representative had ostensible authority to bind the Applicant as far as the Respondent was concerned and that a final binding compromise agreement had been reached.Against the Chairman's decision the Appellant now appeals.

The Appeal

This is a Preliminary Hearing held to determine whether the appeal raises any arguable point of law to go to a full appeal hearing.We have before us a fax from the Appellant dated 20 July 1997 in which he informs us that he will not be attending the Preliminary Hearing on the grounds that an ex-parte Preliminary Hearing is a denial of access to justice by this court. Accordingly, we have proceeded to consider this case on the papers.The Appellant's grounds of appeal may be broken down under three headings.(1) The Industrial Tribunal was wrong to find that a binding compromise agreement had been reached. Based on the earlier decision of the Employment Appeal Tribunal in Gilbert v Freeman we are unable to accept that submission.(2) The Chairman had no jurisdiction to decide this point without lay members sitting with him. We have borne in mind the approach of the Employment Appeal Tribunal in Tsangacos v Amalgamated Chemicals Ltd [1997] ICR 154 and shall follow it in concluding that the Chairman had jurisdiction to sit alone for the purposes of this hearing held under Rule 6 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993.(3) Bias on the part of the Chairman. Having considered the complaints raised by the Appellant in his affidavits sworn in this appeal on 11 and 21 March 1997, and the Chairman's comments thereon, we can see no substance in them, and reject this further ground of appeal.In these circumstances we have concluded that this appeal discloses no arguable point of law and accordingly it must be dismissed.