Irfan v The Whittington Hospital NHS Trust & Anor [1998] UKEAT 663_97_0910

EAT

Irfan v The Whittington Hospital NHS Trust & Anor

[1998] UKEAT 663_97_0910 · 1998-10-09

THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): This is by way of a preliminary hearing but, for circumstances which will become clear, we are going to deal with it as though it were a full appeal.

This issue is a very short one and it arises in this way. The Appellant, Dr Irfan presented an Originating Application to an Industrial Tribunal complaining of unfair dismissal and unlawful discrimination on grounds of race. Those proceedings were contested and there was a hearing, towards the end of which the parties concluded a settlement agreement. We have seen the terms of the settlement agreement and it is sufficient to say that the terms have been carefully drafted by the parties and are set out in the form of an agreed order and a schedule of the terms to which the order makes implicit reference.

There is a confidentiality clause in the schedule, but Dr Irfan would wish that clause to be lifted or modified but accepts that this is not the forum for doing so. Accordingly, we address our minds to the real question at issue which is a very short one.

Having made the agreement, the Industrial Tribunal made an order in which they simply recorded the fact that the application is dismissed on withdrawal by the Applicant. Dr Irfan says that that did not give effect to the agreed order which the parties had arrived at during their settlement discussions and the matter came before the Employment Appeal Tribunal and by order dated 23 January 1998, they adjourned the appeal and requested the learned Chairman who had drawn up that order to review it so as to incorporate and I quote:

"The consent order made between the parties dated 14 April 1997"

That plainly is a reference to the terms of the order which had been expressly agreed between the parties contained in a written document signed by both of them and dated 14 April 1997. The agreed order was(1) the originating application is dismissed on withdrawal by the Applicant,

(2) the terms of settlement are confidential to the parties whether acting by themselves, servants or agents,

(3) liberty to apply to enforce the terms of settlement.

There was then a hearing by the Industrial Tribunal to consider the Employment Appeal Tribunal's order and essentially they substituted for the original order, an order that by consent(1) the originating application is dismissed on withdrawal by the Applicant, and

(2) the terms of settlement are confidential to the parties whether acting by themselves, their servants or agents, but they did not include the third agreed clause, namely liberty to apply to enforce the terms of settlement.

The reasons why they did not were twofold,(1) because the terms of settlement had been complied with by the hospital and therefore it seemed to be unnecessary to include it within the order and

(2) the Tribunal had no power to enforce the terms of settlement and so the provisions of paragraph 3 of the original order were of no effect.

Ms Sapeta, who has, if we might respectfully say so have been of considerable assistance to the Employment Appeal Tribunal and has represented her client's interest with conspicuous ability, accepted that the words liberty to apply to enforce the terms of settlement cannot be liberty to apply to the Industrial Tribunal, because the Industrial Tribunal does not have power to enforce any award that it makes. Thus the awards have to be enforced through the County Court, the Industrial Tribunal not being a court of record. But she says that, in order to give sense to it, it is plainly there to indicate to the parties that there was liberty to apply by either of them to the appropriate court to enforce the terms of settlement, which in this case would have been the County Court.

It seems to us therefore that the Industrial Tribunal has erred in the way in which they have dealt with the matter. What they ought to have been asking themselves is, what did the E.A.T. require them to do by its order dated 23 January 1998. What the E.A.T. required them to do, is to incorporate in their order the terms which had been agreed between the parties, which included clauses 1, 2 and 3. Plainly a court is not required to include an order which is in some way embarrassing to the court or infers that it has jurisdiction which it does not have, but it does seem to us that clause 3 can be given good sense to as it stands and does not fall into that category.

Accordingly, clause 3 should have been included. As to the argument. That it was no longer appropriate because time had passed since the original order had been made, we do not regard that as a valid objection. What the Industrial Tribunal should have been doing is asking itself what order should have been made on the 28 April 1997 in place of the order which was then made and the answer was that it should have included all three terms, that third term being entirely appropriate as of that time. Accordingly, we think that the terms of the Industrial Tribunal order should be amended so as to include the three provisions and not just the two. Therefore we shall alter the terms of the Industrial Tribunal's order and it will read:

"By consent, (1) the originating application is dismissed on withdrawal by the Applicant, (2) the terms of settlement are confidential to the parties whether acting by themselves as servants or agents, (3) liberty to apply to enforce the terms of settlement."

To that extent the appeal is successful and is allowed.

I think, in fact, the terms of the order should include the preamble, which is: the terms of settlement having been agreed between the parties in accordance with the terms set out in the schedule hereto, it is hereby ordered or by consent ordered.

The new order will read:

"By consent upon hearing Counsel for the Respondents and the Applicant appearing in person with no admission of liability express or implied on the part of the Respondent terms of settlement having been agreed between the parties in accordance with the terms set out in the schedule hereto it is hereby ordered or order (1) the originating application is dismissed on withdrawal by the Applicant (2) the terms of settlement are confidential to the parties whether acting by themselves, their servants or agents (3) liberty to apply to enforce the terms of settlement."