MRS A K OBONYO v WANDSWORTH PRIMARY CARE TRUST [2007] UKEAT 0237_07_1311

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0237_07_1311Case No Appeal No. UKEAT/0237/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A K OBONYOAPPELLANTWANDSWORTH PRIMARY CARE TRUSTRESPONDENT
Before
Mr Justice BurtonDate 13 November 2007
[1]APPEARANCES For the Appellant MR S STRELITZ (of Counsel) Instructed by: (Direct Public Access) For the Respondent MR D PANESAR (of Counsel) Instructed by: Messrs Bevan Brittan LLP Solicitors Fleet Place House 2 Fleet Place Holborn Viaduct London EC4M 7RF SUMMARY Practice and Procedure: Review / Compromise After an initial award to the Appellant by the ET in the net sum of £108,000 had been set aside in part on appeal to the EAT and remitted, a consent order made by a second ET for £104,000 did not specify whether it was net or gross. The ET wrongly refused an application for review, (either to set aside the consent order on grounds of mistake or to clarify it), on the papers, as without reasonable prospect of success. On appeal, the EAT set aside the ET's decision and substituted a decision that the consent order was on the same terms as the original award, namely net, and without deduction of tax by the Respondent. THE HONOURABLE MR JUSTICE BURTON This has been the full hearing of an appeal by the Appellant, Mrs Obonyo, represented by Mr Strelitz of Counsel, against a decision in favour of the Respondent, the Wandsworth Primary Care Trust, represented by Mr Panesar of Counsel, at the Employment Tribunal at London South.[2]The history of this matter requires some recounting, because it is a sad one in the light of the number of proceedings that have taken place in order to resolve the issues between the parties. Mrs Obonyo was employed by the Respondent but claimed constructive dismissal and various other claims based upon racial grounds: race discrimination and racial harassment. Her claim was resolved in her favour after a hearing at the London South Employment Tribunal between 9 and 12 August 2005.[3]The judgment on liability and, in the event, on quantum, was set out in reasons that were handed down to the parties on 7 November 2005. There was a separate document headed up 'Reserved Judgment', which purported to record the remedy decision in the Appellant's claims for unfair dismissal, race discrimination and victimisation, but it was in fact provided at the same time as the reasons for the reserved judgment, which dealt both with liability and quantum and there was no separate remedy hearing.[4]The claim, as I have indicated, resulted in success for the Appellant. There were schedules and counter-schedules of loss put forward by the parties. As I understand it, all those schedules were calculated on a net loss basis. Paragraph 72 of the judgment discloses that by the end of the oral part of the hearing the parties had agreed the unfair dismissal calculation to the date of hearing, and there is reference made to the figures upon which those sums were calculated, in each case based upon net weekly pay. There was then a consequential calculation of future loss which was on the same basis of reference to net weekly pay. Paragraph 84 of the judgment, contained what became known, by reference to the identity of the Chairman in that case, as 'the Gleeson award'. It totalled £108,440.10. For unfair dismissal there was a basic award of £405 and a compensatory award of £22,642.01. The unfair dismissal compensation consequently totalled £23,047.01. For racial discrimination, there was for future loss of earnings £59,690.06. The reason why it was described under the heading of 'racial discrimination' is plain, as helpfully indicated to me by Mr Panesar, namely that there cannot have been any specific way in which the future loss of earnings derived only from racial discrimination as opposed to the constructive dismissal. The Appellant, Mrs Obonyo, was of an age when the result of her unfair dismissal, albeit the unfair dismissal was interlaced with the race discrimination, was that she would not be likely to recover any earnings in future, and so all the claim fell under the heading of unfair dismissal prima facie, but, of course, there is the cap on compensation if that resulted from unfair dismissal alone and there is no cap for race discrimination. Nevertheless, as I have indicated, the future loss was calculated on the same basis as the unfair dismissal award, by reference to net earnings, and that totalled £59,690.06. In addition, under the heading 'Racial discrimination' there were awarded sums of £3,500 for aggravated damages and £18,000 for injury to feelings and psychiatric injury. The total sum was consequently £104,237.07, the total of the compensatory and future loss sums, the basic award, the aggravated damages and the injury to feelings and psychiatric injury. The £18,000 for injury to feelings and psychiatric injury was, of course, a relatively sizeable sum. The combination of that sum and the aggravated damages of £3,500 led to an entitlement to the Appellant to interest, and that, calculated at 6 per cent per annum from 5 September 2003, meant that there was an additional £2,704.03 added to the claim, and in addition a day's wasted costs ordered to be paid by the Respondent in the sum of £1,500, bringing the total sum to £108,440.10.[5]It is unfortunate that the Gleeson Tribunal may not have had their eye on the ball in relation to the way in which the eventual award was expressed. It is quite plain that the calculation had been carried out net of tax, and that the whole of that sum of £108,440.10 was intended as compensation to be paid to the Appellant. No reference was made in the judgment to what is frequently carried out by way of an exercise in the Employment Tribunals, particularly where there is a separate remedy decision, unlike here where there was a combined liability and remedy decision, whereby, by reference to the case of British Transport Commission v Gourley [1956] AC, 185 HL and subsequent cases, and the statutory provisions, insofar as the compensatory award in respect of loss of employment is under £30,000 where no tax is payable by anybody, and insofar as the employment element exceeds £30,000, in order to give a net recovery to the Claimant, as was clearly intended here by the Gleeson Tribunal, it would have been necessary to have grossed up the award. The elements relating to aggravated damages, basic award, injury to feelings, psychiatric injury and interest thereon would not be subject to tax in any event.[6]That grossing up exercise was not carried out. I am entirely satisfied that that did not in the event matter, and had there been no appeal against the award what would have occurred would have been a payment of the sum of £108,440.10 directly to the Appellant by the Respondent consistent with the judgment of the Tribunal, on the agreed basis that that was the net loss in the light of the Tribunal findings, and that tax thereon, calculated by reference to those elements of the award which would carry tax, would have been the responsibility of the Respondent. That is certainly one way, and not an infrequent way, of dealing with awards in Employment Tribunals where the grossing up exercise has not been carried out in the face of the Court.[7]Mr Panesar sought to submit that, given that the grossing up exercise was not carried out, the result of the Gleeson award would have been that that sum of £108, 440.10 would not have been paid in full to the Claimant, but that the Respondent would have been entitled to deduct such tax as was appropriate from that award.[8]I reject that submission. It would plainly have been totally inconsistent with the clear basis of the judgment of the Gleeson Tribunal to have done anything other than made sure that the Claimant received the total sum of £108,440.10, with the employer liable to account for the tax thereon in due course to the Revenue. There is no requirement to deduct tax from any sum that falls to be paid by the employer to an employee. What is necessary is for any tax on the net sum which is due to an employee to be accounted for to the Revenue. In a situation in which an employer agrees, as he can do, to pay a net sum to the employee, then the employer accounts for the balance to the Revenue. There is nothing unusual about that course; a fortiori where there has been a Tribunal award which directly enforces a right of the successful Claimant, as in this case, to receive a net sum. There is then no obligation or entitlement on the employer to reduce that sum so that the employee receives less than was awarded by the Tribunal.[9]That did not remain the case as far as the Tribunal is concerned, because there was an appeal by the Respondent on points of law to the Employment Appeal Tribunal. This came before a panel of the Employment Appeal Tribunal chaired by Judge Clark in February 2006, when they delivered a judgment referring matters back to the Tribunal for further information, pursuant to the Burns-Barke jurisdiction. The full hearing of the appeal, having thus been adjourned, was restored before a different panel, still chaired by Judge Clark, on 14 July 2006, and that panel concluded that the Gleeson Tribunal had applied wrong tests in relation to the race discrimination claims which they had found in favour of the Appellant. The Employment Appeal Tribunal dismissed the appeals in respect of racial harassment and constructive unfair dismissal. In the light of its findings the case had to be remitted to a different Tribunal for a re-hearing, but limited to the issues to which I have referred on which the appeal had been successful. It meant that there was no impact on the finding which would have carried the most substantial quantum, namely the constructive unfair dismissal claim. For two reasons, the result of the Employment Appeal Tribunal judgment was however to discharge the Gleeson order. What in fact happened, and I find it difficult to understand how this can have happened, is that in paragraph 38 of Judge Clark's judgment he records that he assumes that there had been a remedy hearing adjourned pending the outcome of the appeal. It does not therefore appear that the Appeal Tribunal realised that the judgment which they were setting aside in part had in fact been quantified, in the respects to which I have referred. In any event, however it would have been necessary to set aside the £108,000, to which I have referred, for two reasons. First, because if only constructive dismissal were successful, in terms of orders which carry with them a substantial remedy, the cap would have been applicable, so as to limit some of the compensatory award otherwise made on the combination of unfair dismissal and race discrimination, as had been done. Secondly, of course, if the race discrimination was unsuccessful on the second occasion, there would be bound to have been an impact on those aspects of the award which were not compensatory, such as injury to feelings, psychiatric injury and aggravated damages.[10]The case then was remitted, as I have indicated, to a fresh Tribunal, and there was to be a case management directions hearing for 17 November 2006 before Ms Taylor at the Tribunal in London South. Leading up to that hearing to take place on 17 November were some attempts at negotiations, and I have seen, only for the purpose of the issue which I have to decide today, what occurred in relation to those negotiations. It is plain that until very shortly before the hearing on 17 November the parties were negotiating on the basis of settling by way of quantification those parts of the Appellant's claim which were not going to be reheard by Ms Taylor; and figures were canvassed to settle primarily the constructive dismissal claim, leaving open the issues of race discrimination. A draft agreement was dispatched by the solicitors acting for the Respondent, under the supervision of Miss Sinclair, who had handled the matter for the Respondent at the Gleeson hearing, and ACAS was also involved. Those negotiations were unsuccessful, and it became apparent that the only way in which there could be a deal done between the parties would be if there was an overall settlement. Both parties wanted to settle, but particularly keen, and understandably so, was the Respondent, which was going to have to field all its witnesses again in respect of a rerun of a claim which it had already lost the first time round, albeit its appeal was successful on the points of law. It is not surprising that the Respondent expected, and in particular Miss Sinclair expected, that if there was to be a settlement there ought to have been a substantial, or at any rate some material discount on the amount of the Gleeson award on the Appellant's side to take account of litigation risks, costs and the reluctance, as there no doubt must have been, for Mrs Obonyo to have to give evidence all over again. That was a natural expectation on the part of those advising and representing the Respondent that there would be some considerable give on the Appellant's side, but, unfortunately from the point of the Respondent, there was not, but there was a very robust position taken by the Appellant and her advisers. Her adviser at this stage was primarily her daughter who is a qualified lawyer.[11]We have seen, helpfully, and properly disclosed, an attendance note by Ms Sinclair of 13 November 2006, four days before the hearing on 17 November, which gives a clear indication of where things were at that stage. It is an attendance note of a conversation with ACAS. It reads, in material part, as follows:
"JMS [that is Miss Sinclair] confirmed that she had picked up the detailed message from JC [a reference to the ACAS representative] and wanted to clarify whether or not the claim [sic] was in fact seeking £122,000 on top of the offer of £85,000 . odd [that was a reference to the figure that had been put forward previously to try and settle just the claims that had been upheld on appeal] that had already been offered. JC stated that that was not her understanding but that the Claimant was seeking to wrap up all claims in one compromise agreement. Although she had stated that it was her view that the Claimant would cover [accept] £122,000 in total, she indicated that if the offer was somewhere in the vicinity of £108,000, the Claimant's representative was hopeful that the matter could settle. JMS stated that the original judgment from the ET was £108,440.10 and it would appear that the Claimant has added on the interest payments."
I interpose to say that that was clearly a correct assumption as became clear, if it was not already then, in what occurred in discussions on 17 November, namely that the position for the Claimant was that they wanted to have the amount of £108,000 in full, plus, as they had not been paid it earlier, they wanted interest on that amount in respect of the time which had elapsed, which they estimated at £14,000, thus creating the position they were taking of a total amount of £122,000. As I have indicated, that shows that not only were they not making any discount on the Gleeson Award but they wanted every penny of it plus interest on top. The attendance note continues:
"JMS stated that she would take instructions but it was her view that if the clients could get away with not paying the interest that had accrued in the past 12 months, they would be prepared to settle it closer to £108,000."
[12]The 17 November came, and at this hearing, which never in fact took place as a case management hearing, the parties paced up and down the corridor outside. An employed Barrister, Mr Islam-Choudhury, employed by the solicitors' firm of which Miss Sinclair is a partner, and which was instructed by the Respondent Trust, attended for the purpose of the hearing for the Respondent. The Appellant was represented by a barrister on direct access, a Ms Yetunda Ruban, and was advised by her daughter. Negotiations took place, and they culminated in a settlement. The settlement agreement is set out in a handwritten document signed by Mr Islam-Choudhury, Counsel for the Respondent, and Ms Yetunda Ruban, Counsel for the Claimant; in addition the Appellant signed the document herself. It reads as follows:
"Upon hearing counsel for the Claimant and Respondent by consent it is ordered that:- 1. The claims of direct race discrimination and victimisation remitted for rehearing by the Employment Appeal Tribunal under Appeal no. UKEAT/0237/05/RN by sealed order on the 4 th day of October 2006 are withdrawn and shall stand as being dismissed. 2. The judgment relating to compensation that has been set aside by the Employment Appeal Tribunal under Appeal No UKEAT/0237/05/RN by sealed order on the 4th day of October 2006 [ I interpose that this is the hearing on 14 July which seems for some reason to have taken a long time to draw up] will not be remitted for rehearing by the Employment Tribunal. 3. In consideration for paragraphs 1 and 2 above, the Respondent do pay to the. Claimant the sum of one hundred and four thousand pounds (£104,000) within 21 days of today, made payable to the Claimant directly. 4. The Claimant accepts the payment referred to in paragraph 3 herein in full and final settlement of Employment Tribunal case numbers 2306630/03 and 2302820/04."
[13]For some reason, no doubt because it had taken some time to arrive at the agreement, that was not put before Ms Taylor, the Chairman, on that day, and a date was fixed at which the matter could be, and was, put before her, on 30 November 2006. By this time the parties had fallen out to an extent over whether the agreement accurately reflected what both parties thought it reflected, and I shall return to that later. But the matter was in the end enshrined in a consent order dated 30 November 2006 and sent to the parties on 4 December 2006, which accurately recorded in the same terms the settlement agreement of 17 November.[14]There is a note by Mrs Taylor of what she had been told on 17 November when the parties were negotiating outside, and that simply says this, in terms of her Chairman's Note:
"We have agreed to settle liability and remedy. Have agreed £104,000 to settle everything. Chairman: Signed agreements? The claim is dismissed – direct race discrimination and victimisation are dismissed. Do not want judgment of Ms Gleeson set aside. By consent Judgment of race harassment and constructive dismissal is settled. Ch: Hearing adjourned for parties to agree terms and provide signed consent order."
[15]The dispute, which had been embryonic when the consent order was signed on 30 November, soon became open and the subject of correspondence, and it resulted in an application for a review to the Employment Tribunal, which led to the order by Ms Taylor of 21 December 2006 which has been the subject of this appeal.[16]The review was sought on the grounds set out in an application of 18 December 2006 which is set out below. The application was made by the Appellant on notice to the Respondent. The Respondent did not put in submissions in response, and, as I shall describe, the application for a review was rejected on paper by Ms Taylor. The review application was made pursuant to the Employment Tribunal Rules 2004 paragraph 34(3)(e), whereby "decisions may be reviewed on the following grounds only … (e) the interests of justice require such a review." There is authority, to which my attention had been drawn by Mr Strelitz, in Williams v Ferrosan Ltd [2004] IRLR 607 , but there are other such authorities which emphasise the width of the jurisdiction of the Employment Tribunal under such clause.[17]The application read as follows:
"1. On 17 November 2006 at the Employment Tribunal the parties negotiated and agreed a settlement figure of £104,000. The Respondent by their letter of 15 December 2006 [which I shall refer to] admits that the "the parties were at all times negotiating on the day with reference to (but not based on) the [tribunal's remedy decision of 7 November 2005] Gleeson Order". 2. In their letter of 15 December 2006, the Respondent further contends that "
The Gleeson Order involved a grossing up of the award in relation to loss of earnings, and therefore the Gleeson Order was a gross award. In the circumstances it could not have been the intention of the parties that the settlement of £104,000 was on a net basis. Our client's position is that the settlement of £104,000 was on a gross basis and that was its clear intention". 3. The Claimant contends that the Gleeson Order was on a net basis and it was therefore the intention of the parties that the settlement of £104,000 was on a net basis, please see in particular paragraph 72 of the Gleeson Order and the reference to the Counter -Schedule which was based on net calculations. The claimant's position is that the settlement of £104,000 was on a net basis and that was the claimant's clear intention. 4. in the event, the Claimant herein applies to the tribunal for a review of the consent order so that it accurately reflects the intention and agreement between the parties. 5. Or in the alternative, the claimant contends that the consent order be set aside. The interests of justice require such a review, namely, that the amount of £104,000 agreed between the parties on 17 November 2006 was negotiated and agreed on a net basis."[18]The dispute that had arisen between the parties was, as is clear from that application, as to whether the sum of £104,000 was net, or whether it was intended to be gross such that tax fell to be paid out of it, thus so as to reduce it to a lesser sum. The clearest encapsulation of the nature of the dispute can be seen from the letter of 7 December 2006 addressed to the Appellant, which had already been sent by the Respondent by that stage, 11 days earlier, in purported compliance with the consent order for payment of £104,000:
"We write further to the judgment sent to the parties on 4 December 2006 and in accordance with Clause 4 of the judgment we enclose our client's cheque in the sum of £87,720 being the net amount of £104,000. We are instructed that the first £30,000 of the payment has been made tax free and basic rate tax has been deducted from the balance of £74,000. We are instructed that our client will be writing separately to the Inland Revenue to confirm the payments and deductions are to be made pursuant to the settlement agreement."
[19]The difficulty in which this puts the Claimant is of course not only that she thereby lost a part of the sum which she believed she was entitled to under the settlement agreement of £104,000, but tax was deducted on the basis that the whole of the balance of £74,000 was taxable, when, on any basis, it must have included some items such as compensation for psychiatric injury, and injury to feelings, and interest thereon, and the basic award, which were, as I have earlier indicated, not taxable. But that secondary concern was what I have indicated; the primary concern, namely, was that the tax should not have been deducted at all.[20]The response by way of decision by the Employment Tribunal was sent on 21 December 2006 and it said simply this:
"Further to your application for a review made by letter dated 18 December 2006, I wrote on the instructions of the Chairman, Ms Taylor. The Tribunal cannot change a consent order. Therefore this application for a review is refused for the reason that it has no reasonable prospect of success."
[21]That statement by the Employment Tribunal Chairman, it is common ground, is wholly incorrect in law. The parties have drawn to my attention cases, only two of which were in the mind of the Chairman when the Chairman delivered that judgment, if indeed all the Reasons that were subsequently given by Ms Taylor, to which I will refer, were in her mind at a time when she made that simple statement recorded in the letter of 21 December. The cases which, as I shall explain, she set out in the Reasons, when she was subsequently asked for them, for her decision, were Times Newspapers Ltd v Fitt [1981] ICR 637 and Mayo-Deman v University of Greenwich [2005] IRLR 845. But there are important decisions which were not considered by the Chairman. There is no criticism of a Chairman not knowing all the law, but it becomes significant when the application is refused on paper; whereby she has deprived herself of the opportunity of considering, or having referred to her, any authorities that would undoubtedly have been referred to her had there been an oral hearing. The other two authorities are secondly, Williams v Ferrosan Ltd , to which I have already referred, but first and primarily Larkfield of Chepstow Ltd v Miln e [1988] ICR 1. It is from Larkfield that the clearest position is stated by this Appeal Tribunal per Garland J, and it most clearly appears at the end of his judgment at page 7:
"If the agreement to which a consent order relates can be attacked, can the consent order also be attacked ? The answer must be "yes" because the consent is as vulnerable as the agreement."
[22]There are plainly, as is accepted before me by both parties, circumstances in which a settlement can be set aside, and consequently the consent order based on that settlement, particularly where, as here, the consent order followed precisely the terms of the settlement agreement. Those bases are the two bases specifically mentioned in Fitt , although on the facts of Fitt rejected as appropriate, namely fraud and misrepresentation, but in addition there can be rescission of an agreement at law in circumstances of mistake. The law was not in dispute between the parties before me. If there is a mutual mistake by which both parties are affected, then the contract which was entered into under the mutual mistake can, in appropriate circumstances, be rescinded. Where, however, each party is labouring under a different belief, and there is no mutual mistake, and one party asserts that he or she entered into an agreement under a mistaken belief; if, as it now turned out, the contract fell to be so interpreted, then the issue will be whether the other party who did not share that mistake must not be allowed to take the benefit of a contract which the other side has entered into under a mistaken basis. The law so far as that is concerned is the law of unilateral mistake, which is a difficult area to establish because it needs to be established that the other party either knew of, or must have known of, the opposing contracting party's mistake, and that would require a clear and full analysis of the precise circumstances. Thus there are circumstances in which a settlement agreement, and consequently a consent order based on the settlement agreement, can be set aside by an Employment Tribunal based on fraud or misrepresentation or a mistake: as to which see Williams . But quite apart from setting aside the consent order, in the alternative and indeed on the primary basis of a claim for review, the Employment Tribunal can make an order, as is accepted by both Counsel before me today, which clarifies the order on the review and makes the position clear and, if necessary, declares it. That is what this Employment Tribunal was asked to do on the review application, to declare either that the order was gross or that it was net . That was plainly put before the Tribunal in the first three paragraphs of the application to which I have referred. Alternatively, to set it aside on grounds of mistake. In those circumstances, it was plainly quite wrong for the Tribunal to say that the Tribunal cannot change a consent order. It was also quite wrong for the Tribunal to say "Therefore this application for review is refused", because there was still ground for a review to be considered even if the first proposition - that the consent order could not be changed - had been right, and certainly even if the consent order after full consideration was not to be changed. The Reasons that were subsequently given were, as they were described, reasons , and cannot change the nature of the judgment. However, even assuming that they could, they do not make good the failure by Ms Taylor to consider properly and appropriately this application for a review.[23]In the Reasons given to the parties on 1 February 2007 Ms Taylor sets out the factual background in the first seven paragraphs, and at paragraphs 6 and 7 she records the following:
"6. A few hours after the hearing and in a second letter sent to the tribunal on behalf of the Claimant dated 24 November, the Claimant sought to have the consent order set aside. The Claimant mainly relied on the ground that there had been a 'problem with one of the clauses in the agreement' but gave no details. The Claimant also made allegations concerning the professional status of the Respondent's counsel. The Respondent was given the opportunity by the tribunal to make representations concerning the application made by the Claimant. By letter dated 21 November 2001, [this is plainly a misprint for 2006] the Respondent submitted that at all material times the parties negotiated terms of agreement on the basis of a global compensation figure, they denied that any error had been made in the agreement and denied all other allegations made by the Claimant. It was apparent therefore from the response by the Respondent that the Claimant sought to vary the agreement so as to substantially increase the sum payable to the Claimant. 7. The parties did not agree to set aside and/or vary the consent order and I was satisfied that there had been no misrepresentation by the Respondent's counsel."
The law is then set out under paragraph 8 which includes a reference to Rule 34 - but somewhat surprisingly there is not set out Rule 34(3)(c) in that paragraph or anywhere in the Chairman's reasons - and there was a reference, at paragraph 9, to Rule 37(1), the 'slip rule'. The Chairman continues:
"9. Rule 37(1) provides that slips contained in a consent order which flow from the mistake of one of the parties, may be corrected under this rule as well ( Times Newspapers Ltd v Fitt [1981]. 1CR 637, EAT). 10. It was also held in the case of Fitt that once a tribunal had made an order agreed by the parties it had no jurisdiction to vary that order in the absence of fraud or misrepresentation."
The Parties agree that there ought to be added to that 'and, if appropriate, the law of mistake'. "11. It was held in the case of Mayo-Deman v University of Greenwich [2005] IRLR 845 that once an order has been made dismissing a claim by consent, this disposes of the proceedings and the claimant will not thereafter be able to re-open the case on the grounds that the agreement was not a valid contracting-out agreement in accordance with, for example section 72(4) of the Race Relations Act 1976." That is plainly of no relevance whatever to the issue before the Chairman. "Conclusion 10. Both parties were legally represented and I was satisfied that the parties had reached an agreement." The parties do not have any difficulty with that proposition. " The judgment set out what had been agreed in the consent order. I find therefore that I was entitled to make a judgment accordingly. 11. I have had regard to the Claimant's applications and submissions made following the hearing. I was satisfied that Rule 37(1) does not apply to the nature of the amendment sought in this case. 12. A tribunal does not have jurisdiction to vary that order in the absence of fraud or misrepresentation. I conclude therefore that the Claimant has not made out any grounds on which the judgment in this case can be varied or set aside. 13. This application for a review is refused for the reason that it has no reasonable prospect of success."[24]As I have indicated, that is a slightly different basis upon which the application was refused from the basis on which it was in fact refused, as set out in the decision of 21 December, to which I have referred. But even assuming that it is the Reasons which are to be considered rather than the bald statement with which I have already dealt, what is not addressed there is either the broad jurisdiction under Rule 34(3)(c), nor the fact that consent orders can be set aside on grounds of mistake; and, in particular, there is not addressed the primary case made by the Claimant that the order ought to be clarified. Above all, the basis of the dispute between the parties, which would form the ground of consideration on either of those matters, ie. clarification, on the one hand, or setting aside on grounds of mistake, on the other, was not addressed at all. I am entirely satisfied that there were plainly grounds upon which the Chairman of the Tribunal ought to have admitted the application for review. There was plainly something that had gone badly wrong, and although no submissions were put in by the Respondent - indeed, perhaps because no submissions were put in by the Respondent, in opposition to the Appellant - there was a need for careful consideration of what the Appellant had put forward, which on its own ought to have driven the Chairman, properly advising herself in law, to allow the application for review.[25]In paragraph 1 of the application for review, it was stated by reference to the Respondent's letter of 15 December 2006 to the Appellant, which was in fact before the Tribunal, in addition to what I will refer to below, that the Respondent admitted that "the parties were at all times negotiating on the day with reference to (but not based on) the Gleeson Order". That letter dated 15 December 2006 reads as follows:
"Our Client does not accept that the £104,000.00 was a net payment. We say this because the parties were at all times negotiating on the day with reference to (but not based on) the Gleeson Order. We would point out that the Gleeson Order involved a grossing up of the award in relation to loss of earnings, and therefore the Gleeson Order was a gross award. In the circumstances it could not have been the intention of the parties that the settlement of £104,000.00 was on a net basis. Our Client's position is that the settlement of £104,000.00 was on a gross basis and that was its clear intention."
[26]When I raised, by way of a written query to the parties before the hearing, whether the Respondent indeed supported the proposition that the Gleeson Order was a gross award as there referred to, a response was helpfully put forward by Mr Panesar, on instruction, which has formed the basis of submission before me, namely, that that was in fact an incorrect statement. The reason it was incorrect is that this was a letter that was apparently drafted and sent by the employed Barrister, Mr Islam-Choudhury, to whom I have referred; and Mr Islam-Choudhury, both when he sent the letter and, more significantly, when he attended as Counsel at the Case Management Directions hearing on 17 November and finalised the negotiations, had not read the Gleeson judgment. He had only seen the two-page document, to which I referred earlier in this judgment, which recited the figures by way of remedy, and he mistakenly believed that those had been grossed up and were gross figures. That is, as Mr Panesar accepts, plainly wrong. Had Ms Taylor had the benefit of oral argument she would certainly have looked, but in my judgment, if she was going to decide on paper, she should, in any event, have looked, at the Gleeson judgment, which would have been file at the Tribunal; and it would have been wholly apparent, as I earlier explained, that the figures in the Gleeson award were(a) net figures(b) not grossed up figures. That means that paragraph 1 of the review application had a particularly important significance.[27]First , if examined it would have shown that the Respondent's position was unsustainable.[28]Secondly , once it was accepted, as it plainly was in the Respondent's own letter of 15 December, that the negotiations were by reference to (but not based on) the Gleeson Order, then it would have rendered it the more likely, and I shall return to this, that the £104,000 was expressly on the same basis as the Gleeson Order, namely net.[29]Thirdly , even without consideration of that mistake, or appreciation by the Chairman of the true facts in relation to the Gleeson judgment, plain on the face of the application for review was an important dispute between the parties. It was accepted - see paragraph 1 of the application - that the negotiations had been by reference to the Gleeson Order. Paragraph 3 recited that the Appellant asserted that that meant that the £104,000 was net , as had been the Gleeson Order, and paragraph 2 indicates that the Respondent contended that the £104,000 was gross as had been the Gleeson Order. That was plainly an important issue which could not in my judgment be resolved on paper.[30]Fourthly , it may have been relevant for the Chairman to look at her own notes, which I have referred to above, which had recited that the parties did not want the judgment of Ms Gleeson set aside.[31]Fifthly , when she came to deliver the Reasons, to which I have referred, the Chairman made reference to the letter of 21 November 2001 (an incorrect reference to 2006), and I must assume that such matter was within her mind when she had delivered the decision of 21 December, because it is later put forward as a reason for that decision. The letter which I have referred to stated this:
"At all material times, the parties negotiated the terms of the Agreement on the basis of a global compensation figure."
That, in my judgment, was not an answer to the point that was being put forward, and clearly put forward, in the first three paragraphs of the review application. The issue was not whether it was a 'global' figure but whether that global figure was to be paid net or gross .[32]Sixthly , it would again have been apparent from a quick look at the Gleeson judgment that, as I have earlier explained, the £108,000 there provided for included a number of items which were not taxable. That itself ought to have led, in my judgment, to at least a consideration by the Chairman as to whether it would, in those circumstances, be likely that the £104,000 would have been agreed globally, it may well be, but all of it gross.[33]Lastly , there is what, in my judgment , was a very significant matter indeed. I have already referred to the way in which payment was made by the solicitors for the Respondent, by letter of 7 December, which is no doubt a matter which was not before the Tribunal, whereby in terms they sent £87,720, being the net amount of £104,000, to the Appellant, and the balance they were going to account for to the Inland Revenue. The settlement agreement and the consent order both expressly provided for payment to be made "directly" to the Claimant. I shall return to this point later in the judgment, but it appears to me clear that had the Chairman turned her mind to it, and/or had she directed a hearing at which her mind could have been drawn to it, it would have been entirely plain that that is a strong argument, if not a conclusive argument, in favour of the Appellant's case and a rebuttal to the Respondent's case that they were in some way entitled, if not obliged, to make a deduction and pay it to the Revenue from the £104,000.[34]In all those circumstances this decision by Ms Taylor was in my judgment in error, and she ought to have allowed the review.[35]On the review, as I have indicated, it is common ground that she could either have construed the order in order to determine and clarify it, either so as to be gross or net, or she could have remitted an issue to be tried, and no doubt, by a full Tribunal, to see whether the order ought to be set aside on grounds of mistake. In the absence of Ms Taylor having made that decision it falls to me now to consider the position, and I can plainly exercise the same discretion and jurisdiction as Ms Taylor had, and, perhaps unusually, the position will be exactly the same at the Employment Appeal Tribunal as it would have been before the Tribunal, namely, that if I am in any doubt as to the position I must remit the matter for a full hearing by a Tribunal, but if the position is, in my judgment, all but clear, clear beyond any reasonable doubt, then I can and should exercise the jurisdiction to make the order that would have been made, I am satisfied, on the review. If I am satisfied that I can, and should, construe the agreement so as to declare that it is gross or net irrespective of the beliefs of the parties but taking into account the factual matrix, then I should, as is agreed between the parties, exercise that jurisdiction. If I am not sure then I have to ask myself whether there is an issue to be tried as to setting aside the order and make provision for that to be done.[36]I am entirely clear that this consent order and the agreement upon which it is based ought to be construed, and must be construed, in only one way, namely that it was a net payment. I take into account the matters that I have set out above as matters that ought to have caused concern on the review application, but of course for the purposes of my decision now they must do more than cause concern. The first and most important question, to which I referred last in my list of matters before the Tribunal, relates to the form of the consent order. I am entirely satisfied that that was intended, or at any rate whether it was intended or not does not matter, it must be construed objectively, to rule out any deduction in the circumstances of this case. I put this point first, but my conclusion on it takes into account my findings to which I shall refer on the factual matrix, being matters which I am entitled to take into account in my construction of the agreement. There has been a suggestion made in a statement by Mr Islam-Choudhury served on 12 November 2007 in response to my question to Counsel for the Respondent to which I must refer to. I had not intended by my question that it should lead to any further and belated witness statements, but Mr Strelitz had no objection to the admission of Mr Islam-Choudhury's statement, probably for the reason which he made clear himself, namely that it disclosed the error in relation to Mr Islam-Choudhury's not having actually seen the Gleeson Order, to which I referred earlier. In that statement Mr Islam-Choudhury says this about paragraph 3 of the settlement agreement:
"In the present case the Claimant's daughter … had been acting as the Claimant's representative throughout, with Ms Ruban instructed as Counsel through the Direct Access Scheme. At times the Respondent's solicitors had been corresponding directly with both these individuals and generally with Caroline Obonyo. Therefore I understood the reason for the wording was so as to make clear that payment should be made to the Claimant as opposed to the Claimant's daughter or Counsel. I did not understand the word to have any more significance than that."
He does not suggest that it was expressly agreed between the parties as to the basis upon which the word should be used, it was simply his understanding, not orally aired. That does not, in my judgment, help me in relation to my objective construction of this paragraph. I find it wholly unlikely that the words 'directly to the Claimant' would have been inserted for the reason of making sure that none of the money went either to her daughter or to her counsel, and I am satisfied that it forms part, and an important part, of the basis for the construction of this agreement, that what it was intended to do was to ensure that the full amount of the £104,000 reached the Claimant, after the time that had been wasted, or at any rate the delay there had been by virtue of the appeals since the original Gleeson Order, which would have had exactly the same effect, and in respect of a slightly larger sum.[37]I have already referred to the attendance note disclosed by the Respondent. It is quite plainly inappropriate for me, and indeed impossible for me, to seek to resolve issues of fact at this Tribunal today, nor do I seek to do so. I have consequently not referred at all in argument during the oral hearing, nor have either Counsel, and I do not refer in this judgment, to any statements emanating from the Appellant, although like the Respondent they have put in, pursuant to the order of the Employment Appeal Tribunal made by Judge Serota QC on the preliminary hearing, statements as to the factual matrix. I restrict myself to the documents which emanate from the Respondent. The starting point is the response to this appeal by the Respondent, which reads in paragraph 7 as follows:
"At the CMD, Mr Islam-Choudhury took over negotiations from Miss Sinclair, Mr Islam -Choudhury re-stated the offer of the global sum of £91,000 to the Appellant's counsel, Miss Yelunde Ruaban. The offer was rejected by the Appellant, with her maintaining that she wished to settle at £108,000, referring to the fact that she would not accept anything below the global sum awarded in the Remedy judgment."
That position, therefore, openly set forward, and very properly, in the pleadings in this appeal, is entirely consistent with that which appears in the contemporaneous attendance note which I referred to earlier in this judgment. It is quite plain that at all times during the week or so leading up to the hearing, and at the hearing, the Respondent appreciated, and it was the fact, that the Appellant was sticking to the £108,000 as per the Gleeson award, indeed plus £14,000 worth of interest, and that the aim of the Respondent, as set out in the Attendance Note, was to chip away at that as much as the Respondent could.[38]In two paragraphs of the witness statements as put in by the Respondent that position is made clear again. In paragraph 8 of Miss Sinclair's witness statement relating to the events prior to 17 November she said this:
"At the time of my telephone discussions with ACAS, I noted that this figure [that is the £108,000] was close to the original amount set out in the Judgement of the Employment Tribunal dated 7 November 2005, without any reduction being made for the commercial considerations and/or the merits of the remaining claims should they be re-litigated before a fresh Employment Tribunal."
The frustration Miss Sinclair was plainly experiencing as a result of the obduracy of the Appellant is there apparent, and she was unable to get them to come down. On the day Mr Islam-Choudhury was in charge of negotiations, as I have indicated, and in paragraph 11 of his witness statement he says as follows:
"I was able to restate the offer of £91,000 as a global sum in full and final settlement of all claims. Miss Ruban's position was that her client would not settle for anything less than £108,000 and she made reference to the Remedies Judgment dated 7 November 2005 which had been set aside by the EAT. My response was that the Remedies judgment had been set aside and that the Respondent would not be in a position to settle matters at £108,000, as this figure would provide a psychological barrier to my client, having gone to the EAT and successfully appealed, only to come back and settle at a figure very close to what had previously been ordered."
[39]In the event there was a small reduction from £108,000 to £104,000. We now know that Mr Islam-Choudhury had not in fact read the Gleeson judgment and had not appreciated how it was arrived at. In my judgment that is of no materiality to the question I have to decide as the primary point before me, namely as to what objectively this agreement amounted to. I am entirely clear that this was an agreement to pay £4,000 less than the Gleeson judgment, and on the same basis as the Gleeson judgment. There was, for psychological reasons, a small reduction, but otherwise what the Appellant had wanted, and insisted on, namely, to come out with the same amount as she had come out with as a result of the Gleeson judgment, was achieved. As I am satisfied that the Gleeson judgment was a net judgment, so was the £104,000. Albeit that it may be Mr Islam-Choudhury did not know that, Miss Sinclair did. Although she was not carrying out the negotiations themselves on the day, no doubt Mr Islam-Choudhury went back from time to time for instructions. I do not rest my decision on the inner workings from the point of view of either party; I rest my conclusion on a clear decision that this was an agreement for £4,000 less than the Gleeson but net . In those circumstances the fact that there was a reference made during the negotiations and in correspondence afterwards to the fact that the agreement was to be 'global' is of no significance. It is clear that the figure was indeed to be global, but global, contrary to the submissions of Mr Panesar, does not mean gross. Global can mean total or global net or total or global gross. In this case it meant total or global, that is not broken down, but net, and I am satisfied that that is the order that should have been made by Ms Taylor had she allowed the review application to come on in front of her, rather than rejecting it as having no prospect of success, and it is the order which would be made by any Tribunal to which I remitted this for further consideration. Consequently, not least bearing in mind the amount of hearings and costs that have already been incurred on this matter, I do not propose to remit it, and I am satisfied that I should substitute my own decision for the decision of the Employment Tribunal dismissing the review application. I substitute a decision that the review is allowed, to the extent of declaring that the £104,000, the subject matter of the consent order required to be paid directly to the Appellant, was to be paid directly and without deduction and was to be paid net. The consequence being that, as with the Gleeson award, any liability for tax on that sum was the responsibility of the Respondent as employer. If I were not satisfied that the contract should be so construed, I would certainly have been satisfied that the Appellant was at all stages acting in the belief that the global figure which they were negotiating was, in accordance with the Gleeson judgment, net, but there would be an issue to be tried as to whether that unilateral mistake was one which should lead to the remedy of rescission by reference to the authorities on unilateral mistake, and the state of mind required from the other party to the negotiations; and, of course, there would, in any event, need to be a finding even before one got to a unilateral mistake as to what the state of mind of the Respondent was, given the apparent dichotomy between the knowledge that Miss Sinclair had as to the nature of the Gleeson award and the lack of knowledge on the part of Mr Islam-Choudhury. But I am satisfied that there is no need for that issue to be considered because the contract on objective construction, but taking into account the clear factual matrix, is sufficient for me to resolve this issue.[40]I therefore allow the appeal.