THE UNIVERSITY OF KENT v MS M FITZGERALD [2002] UKEAT 1313_01_2702

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1313_01_2702

Case No Appeal No. EAT/1313/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

THE UNIVERSITY OF KENTAPPELLANT

MS M FITZGERALDRESPONDENT

Before

His Honour Judge A Wilkie

Sir Gavin Laird

Date 27 February 2002

[1]APPEARANCES For the Appellant MR M DUGGAN (of Counsel) Instructed by: Furley Page Solicitors 39 St Margaret's Street Canterbury Kent CT1 2TX For the Respondent MR R H DAVISON (of Counsel) Instructed by: Messrs Royds Treadwell Solicitors 2 Crane Court Fleet Street London EC4A 2BL HIS HONOUR JUDGE A WILKIE QC This is an appeal by the University of Kent at Canterbury against a Decision of the Employment Tribunal which, on 11 September of last year, decided that it had jurisdiction to consider certain of the Respondent's complaints, having regard to section 203 of the Employment Rights Act 1996 and section 9 of the Disability Discrimination Act 1995.

[2]The chronology of events is set out, helpfully, by Mr Davison as an addendum to his Skeleton Argument. The appeal concerns the construction of a Compromise Agreement. The Applicant had been employed as a lecturer at the University of Kent and on 30 June 1999, she presented an Originating Application to the Employment Tribunal complaining of disability discrimination and breach of contract. Those proceedings were settled, pursuant to a compromise agreement, dated 18 November 1999, which was proved and subject to the relevant statutory process, and certified as such on 1 December 1999.

[3]At the heart of the dispute is clause 4 of that agreement, but certain of the factual circumstances, as recorded in the preamble to that agreement, are of relevance. In particular, on 1 April 1999, the University notified the Applicant of its decisions, first that her probationary period would be extended from 1 July 1999 to 30 June 2000 during which time she was required to submit a PhD thesis. Second, if that requirement were met, her probationary period would be extended to 30 June 2001, during which time the examiners would confirm that she had satisfied the criteria for the award of a PhD. Third, if that latter requirement were satisfied, the University Promotions Committee would consider her performance as a whole, in order to decide if the probationary service had been satisfactorily completed or not.

[4]According to the preamble of that agreement, the Applicant, on 30 June 1999, issued proceedings claiming, amongst other things, breach of contract and disability discrimination, in respect of that tripartite decision, and in addition, earlier incidents of alleged overwork. Those were the proceedings which were being settled by the Compromise Agreement. Clause 4 provides as follows:

"The terms of this agreement are in full and final settlement of all claims (if any) extant at this time whether contractual, statutory or otherwise including but not limited to the Employee's claims under English and/or European Community Law" [for, amongst other things, disability discrimination] "

SAVE THAT nothing in this agreement shall serve to restrict the Employee's right to pursue a claim (if any) for the following: (a) Personal Injury and/or (b) Any remedies the Employee may have concerning the University's non-confirmation of successful completion of probation, whether following non-submission of her PhD thesis by the due date or following submission of her PhD thesis and its assessment (other than claims for disability discrimination or breach of contract arising by the inclusion within the Employee's employment terms of the requirement to complete a PhD and that it be submitted by the 30 th June 2000)."

[5]The position is that the Applicant did not complete her PhD by 30 June 2000 or, at all. Her employment with the University of Kent ceased. On 1 June 2001 she presented an Originating Application to the Tribunal in which she complained of unfair dismissal, disability discrimination, and breach of contract.

[6]Within the Originating Application, as was originally drafted, there were a number of matters of complaint set out which, on any view, were precluded by the Compromise Agreement. However, an amended Originating Application was presented which included, in effect, the complaint from the Applicant that the application of the PhD requirement as a reason for non confirmation of her probationary period was an instance of disability discrimination. The Appellant sought to have that aspect of her claim struck out as an abuse of process on the grounds that such complaint was precluded as being governed by the Compromise Agreement.

[7]The Employment Tribunal decided against that submission. It construed clause 4 of the Compromise Agreement as not covering the complaint that she was making, namely the non-confirmation of the appointment by reason of the application of the requirement to complete the PhD by 30 June 2000. The Tribunal concluded that all that was precluded by the Compromise Agreement was a complaint that she might make, that the inclusion of that term in her employment agreement constituted disability discrimination, thus a complaint about its application was not precluding the Compromise Agreement. In so deciding, the Employment Tribunal relied on the authority in the Court of Appeal in Meade-Hill -v- British Council

[1995] ICR 847

, which points out, as is undoubtedly the case, that it can be an instance of discrimination to include a term in a contract, whether or not in fact that term has yet been invoked, and that the invocation of that term may constitute a separate and distinct act of discrimination. The appeal to this Tribunal does not seek to go behind that distinction, but is on the basis that the true construction of this clause is such that the only subject matter for the latter part of clause 4(b) could have been the operation of the term in not confirming her probation by reason of her non-submission of her PhD thesis.

[8]Mr Davison, in seeking to persuade us to uphold the Tribunal's Decision, has argued on two bases. One of them, which is in his Skeleton Argument, essentially replicates the reasoning of the Employment Tribunal by pointing to the fact that it is the word "inclusion" in the part of the clause 4(b) with which we are concerned, which limits its operation. It seems to us in the context of clause 4 as a whole, that is not the correct construction. It is plain to us that if clause 4(b) has any purpose at all, it can only be in the context of there already having been an application of the requirement as the reason for not confirming her successful completion of probation, and that the use of the word "inclusion" does not denote, exclusively, a claim based upon its inclusion, rather than its invocation by the University of Kent.

[9]Mr Davison, however, has a more far reaching construction argument. He points out, as is the case, that clause 4, in its principal part, is essentially backward looking in that it states that the agreement is in full and final settlement of all existing claims, as at the date of the agreement, namely in November 1999, and that it does not, therefore, preclude any claim, the factual basis for which was not in existence at the date of the agreement. Thus, he says, the fact that the non-confirmation of her probation did not occur and could not occur, until some day after June 2000, means that clause 4 cannot operate to preclude her bringing any such claim, whether or not for disability discrimination. In effect, therefore, what he says is that the part of clause 4 which starts: "SAVE THAT nothing in this agreement shall serve to restrict the Employee's right to pursue a claim" and which goes on in (b) to set out, in the first part, any remedies concerning non-confirmation of probation is, if it has any purpose at all, simply explaining what, in any event, is obviously the case, namely that the first part of clause 4 does not prevent the employee bringing any claim, the factual basis for which, did not then exist.

[10]He goes on to say that the second part of Clause 4(b), which seems to limit the freedom which the employee is otherwise given by the saving provision, does no more than state what is already obvious; namely that if she had already made any claim, as indeed she appears to have done, for disability discrimination, arising by virtue of the mere inclusion in her employment terms of that requirement, then she would not be free to make such a claim again. That further sub-clause would equally have no point in 4(b) because it would be no more than a re-statement of the first part of clause 4 which explicitly excludes, from any future claim, any claims already extant in respect of disability discrimination. Thus, what Mr Davison says is that the entirety of clause 4(b) is an exercise in futility or, at best, an over-enthusiasm for explaining what is already obvious.

[11]It seems to us that a clause such as clause 4(b), which is has obviously been very carefully crafted in order to provide for two cumulative provisions pointing in opposite directions, is one where we should not readily accept that it is simply an exercise in futility. It seems to us, on the contrary, that clause 4(b) plainly does have a purpose, and the purpose was specifically to prevent the Applicant in future making a claim for disability discrimination, on the occasion of her non-confirmation of successful completion of probation, where that claim was already the subject of the Compromise Agreement, albeit, not explicitly covered by the first part of clause 4.

[12]Thus clause 4(b) makes the obvious statement that she can bring a claim for a remedy, in respect of non-confirmation of her successful completion of probation on the grounds of non-submission of her PhD thesis, that being a claim which is not extant at the date of the Compromise Agreement, but deliberately makes specific contrary provision that she may not do so if the non-confirmation arises by the inclusion, within her employment terms, of the requirement to complete a PhD, on the grounds that that constitutes a claim for disability discrimination.

[13]It seems to us that the plain and sensible intention of clause 4(b) is to preclude that which the Applicant now seeks to do, namely to have her cake and eat it, to have achieved her settlement of her claims and yet be able to bring a new claim, essentially arising from the complaint that she has already made and has already compromised. It seems to us that, therefore, the inclusion of 4(b) has this specific purpose. It is not an exercise in futility. The use of the word "inclusion" rather than "application" within clause 4(b), in the context where the trigger for the claim is that there has already been a refusal of certification of completion of her probation, is apt to cover the claim that she presently makes.

[14]It therefore follows, in our judgment, that the Employment Tribunal misconstrued the Compromise Agreement. Both parties are at one that, if that is our view, then that does constitute an error of law on the part of the Tribunal. It therefore follows that this appeal must succeed, and therefore we substitute our judgment for that of the Employment Tribunal, and it therefore follows that the relevant parts of the amended Originating Application, concerning disability discrimination and breach of contract, must be struck out. We refuse leave to appeal.