Oyo v Parkside Health NHS Trust [1998] UKEAT 554_98_0412

EAT
Oyo v Parkside Health NHS Trust
[1998] UKEAT 554_98_0412 · 1998-12-04
MR JUSTICE LINDSAY : We have before us as a Preliminary Hearing an Application by way of appeal by Miss M E Oyo in the matter of Oyo v Parkside Health NHS Trust . There was a decision by the Chairman, Mr C B Robson, sitting with two members at London North on 19 February 1998 sent to the parties on 24 February 1998. That said this:
"Terms of settlement having been agreed between the parties, by consent this Originating Application is dismissed upon its withdrawal by the Applicant."
Well, there is no direct appeal against that but we shall have to explain briefly the procedural history. On 13 June 1997 the Industrial Tribunal received Miss Oyo's IT1 (the initiating process) claiming unfair dismissal against Parkside Health NHS Trust. On 21 July 1997 the Trust responded denying that there had been an unfair dismissal. Then on 19 February, before an Industrial Tribunal of three, as I have just mentioned, the order I have just recited was made, namely that the Originating Application was dismissed upon its withdrawal by the Applicant.Counsel appeared on both sides on that day. We have in fact been sent also with our papers the consent provisions signed by Counsel for the Applicant and Counsel for the Respondent that set out the terms which were agreed. They included the payment of £2,500 to the Applicant and that she should be provided with a reference. The parties, it seemed, agreed terms and that the terms should be confidential. We do not need to read out the terms that were then agreed.On 3 March 1998 the Industrial Tribunal was sent a letter by Miss Oyo's Solicitors; it said this:
"Our client informs us that her matter was put aside on the 19th of February 1998 as a result of an apparent settlement. Our instructions are that she has not accepted the terms of the settlement and would like the matter reinstated forthwith.
Our client further instructs us that the terms of the settlement were accepted on her behalf by those representing her and that she was unduly pressured into agreeing with them.

In the circumstances we request that the matter be reinstated."

The Chairman's office answered that in the following terms:
"The Chairman's notes of the hearing on 19 February show that the Applicant was represented by Counsel and that, after 1 hr 25 mins of negotiation, she and the Respondents' Counsel, returned and announced a settlement, which the Tribunal consented to. Accordingly, an order was drawn up in the usual form dismissing the Applicant's Originating Application. The Applicant was made aware at the hearing that her Originating Application would be dismissed, as the Chairman's notes show.
The upshot is that her complaint has been dismissed with her agreement.

The Chairman therefore declines to reinstate the claim."

Then on 7 April there was a Notice of Appeal from Miss Oyo against the decision not to reinstate.That the Industrial Tribunal has got power in such cases as Miss Oyo's to allow the matter to be compromised by way of an agreement between the parties then embodied in a consent order is quite plain on the authorities and indeed is not disputed by Miss Elfield who appears today for Miss Oyo. She has not referred us to this case but for the sake of completeness that proposition is plainly made good by Milestone School of English Ltd v Leaky (1982) IRLR p3.So that matters can be compromised in the way it was done is quite plain. What then, is this power, that was sought to be invoked, to "reinstate"? There is no express mention of any such power in the Industrial Tribunal Constitution Regulations of 1993 but Miss Elfield draws our attention to the powers to review under Rule 11. We do not say whether or not it would be appropriate for a review to have been conducted had it been asked for but it was not asked for. What the Industrial Tribunal was asked to do was "reinstate" which was, quite plainly, a matter different to a review under Rule 11.We see there to be no error of law in the decision of the Chairman by his letter of 31 March 1998. We leave to Miss Oyo the consideration of what other courses might be open to her. We say nothing about them whatsoever but simply in terms of whether the Chairman was right to refuse to "reinstate" her claim on the matter put in front of him we detect no error of law. We mention that there was, in fact, no evidence in front of him of any ground on which the matter of the panel's decision of 19 February could be set aside. There was no evidence in front of him of fraud or duress or anything else of that nature. Such material, if available, might conceivably lead ultimately to a setting aside of the consent order but, properly confining himself to a request for "reinstatement" the Chairman was right to decline it. We see no error of law in his declining it and accordingly we dismiss the appeal.