THE INDUSTRIAL TRIBUNALS

CASE REFS:   2087/11
69/12

CLAIMANT:			Theo Allen

RESPONDENTS:		1.	Citi/Citigroup
				2.	Catherine McCourt
				3.	Aideen Malone
				4.	John Healy 

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that on the balance of probabilities the claims have not been conciliated with the assistance of the Labour Relations Agency and the claimant is therefore not estopped from proceeding further with these matters before an industrial tribunal.

Constitution of Tribunal:
Vice President (sitting alone):		Mr N Kelly

Appearances:
The claimant was represented by Mr S Martins, of the Employment Law Service.
The respondents were represented by Mr P Bloch, of Engineering Employers Federation Northern Ireland.

Reasons

1.	The claimant had lodged claims of unfair dismissal, unlawful deduction from wages and unlawful disability discrimination, including unlawful victimisation.  

2.	This was a pre-hearing review to determine:-

“Whether the claims had been conciliated with the assistance of the Labour Relations Agency and therefore whether the claimant was estopped from pursuing these claims further before the industrial tribunal?”

Relevant law

3.	To put the matter differently, the issue was therefore:-

“Whether the parties had agreed to settle the claim in circumstances in which the Labour Relations Agency officer had ‘taken action’ for the purposes of Article 245 of the Employment Rights (Northern Ireland) Order 1996, Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996 and Section (9)(1)(2) of the Disability Discrimination Act 1995?”

4.	In Allma Construction Limited  v  Bonner [2011] IRLR 204, the EAT concluded at Paragraph 26 that:-

“Thus, if parties agree to settle a claim in circumstances where an ACAS officer has ‘taken action’ the jurisdiction of the employment tribunal is ousted.  Taking action is not further defined and so must be given its ordinary meaning so as to cover any action taken by an ACAS officer in relation to the claim.  He does not require to broker the settlement nor does he require to record it.  His statutory duty goes no further than he is to endeavour to promote a settlement of the proceedings.  How he does that will be a matter for him and will vary from case to case according to its particular circumstances.  Whilst there is a practice of ACAS being involved in the recording of settlements in standard paperwork (forms COT 3), that practice does not need to have been followed for the tribunal’s jurisdiction to be ousted in a case which falls under Section 18(2) of the Employment Tribunals 1996.”

Relevant facts

5.	At all relevant times, the claimant was represented by Mr Samuel Martins of the Employment Law Service and the respondents were represented by Mr Peter Bloch of Engineering Employers Federation Northern Ireland.

6.	The respondents waived their right to confidentiality in relation to discussions with the Labour Relations Agency.  The claimant refused to do so.  The Conciliation Officer who gave evidence to this tribunal, ie Ms Helen Smyth, was therefore in the awkward position of only being able to give evidence in relation to her contacts with Mr Bloch or her contacts with others in the Engineering Employers Federation.  She was unable to discuss or to explain any contacts which she would have had with the claimant’s representative, Mr Martins.  Mr Martins was invited to consider whether the claimant still wanted to assert confidentiality in these circumstances and he confirmed that the claimant still wished to do so.  The hearing proceeded on that basis.

7.	Article 20(7) of the Industrial Tribunals (Northern Ireland) Order 1996 provides:-

“Anything communicated to the Agency in connection with the performance of its functions under this Article shall not be admissible in evidence in any proceedings before an industrial tribunal, except with the consent of the person who communicated it to the Agency.”

8.	Article 20(7) does not provide that an industrial tribunal may not draw or should not draw an appropriate inference from the failure of one party to consent to the admission into evidence of his communications with the Labour Relations Agency, particularly where that party’s case appears to be that such communications would or could support his case.  

9.	Following discussions in which the claimant’s representative had stated, on behalf of the claimant, that the claimant would settle his claims for £30,000.00 and a reference, the respondents’ representative e-mailed the claimant’s representative on 12 December 2012 at 11.59 am to state:-

“I have taken instructions and am now in a position to make one offer of £25,000 plus a record of employment (not a reference).  Please refer to me in due course.”

10.	The claimant’s representative e-mailed the respondents’ representative on 17 December 2012 at 11.41 am to state:-

		“We acknowledge receipt of your e-mail and shall revert shortly.”

	It is therefore clear that real negotiations were under way at that point between the claimant’s representative who had full authority to act on behalf of the claimant and the respondents’ representative who similarly had authority to act on behalf of the respondents.  

11.	I accept the unchallenged evidence of the respondents’ representative that further oral discussions followed with the claimant’s representative which resulted in the claimant’s representative orally indicating an agreement to settle for £30,000.00 with a record of employment, with no admissions of liability and with the claims being withdrawn on payment of the agreed sum.  That was discussed directly between Mr Bloch and Mr Martins without the involvement of the Labour Relations Agency.

12.	The Labour Relations Agency kept a written record of all telephone calls with the representatives of the claimant and the respondents.  Obviously in this case, for the reasons set out above, Ms Smyth could only give evidence and could only produce documentation in relation to the record of the telephone calls with the respondents’ representative, Mr Bloch, or with others in the Engineering Employers Federation.  I accept the accuracy of those notes.  

13.	On 12 March 2013, the respondents’ representative, Mr Bloch, telephoned the Labour Relations Agency at 10.23 am.  Ms Smyth was not available.  The respondents’ representative left a message advising that the parties had provisionally agreed a settlement and asking for a call back.  He provided his telephone number and the telephone number for the claimant’s representative.  

14.	At 10.40 am, Ms Smyth telephoned the respondents’ representative in response to his call.  She has recorded that the time for payment was still to be confirmed.  The parties were trying to agree a 14 day period for payment instead of the more usual 40 days.  The settlement terms were recorded as:-

“£30,000 in full and final settlement of all claims, record of employment to be provided, no admission of liability, a confidentiality clause save for any legal or tax purposes and the claimant’s spouse or partner refrains from continuing the proceedings.”

15.	Ms Smyth followed normal practice and reduced the proposed settlement terms into writing and sent them to the respondents’ representative.  Although Ms Smyth was very careful not to give evidence in relation to this, it is also clear that those settlement terms were sent at the same time to the claimant’s representative.  In her communication to the respondents’ representative, Ms Smyth stated:-

“I would be grateful if would confirm acceptance or otherwise of these on behalf of your clients by return e-mail.  Upon receiving acceptance of the terms from both parties I will notify the tribunal of settlement.”

16.	By 12.25 pm, Ms Smyth had reviewed the draft settlement and had realised that she had omitted any reference to a record of employment in the draft terms of settlement.  She corrected the draft settlement terms and re-sent them.  Again clearly these were sent to both parties.  In her e-mail to the respondents’ representative she stated:-

“I would be grateful if would confirm acceptance or otherwise of these on behalf of your clients by return e-mail.  Upon receiving acceptance of the terms from both parties I will notify the tribunal of settlement.”

17.	At 1.54 pm on the same day, Ms Smyth forwarded by e-mail to the respondents’ representative a ‘further amended version’ of the settlement terms as proposed by the claimant’s representative.  The first thing to note is that Ms Smyth no longer used the term ‘draft’ settlement terms.  Ms Smyth went on to state:-

“I await confirmation of your acceptance before notifying the tribunal of settlement.”

This is a clear statement that Ms Smyth was only awaiting the confirmation of the respondents’ representative before notifying the tribunal of settlement and is therefore consistent with the agreement having been reached subject to that acceptance.  Ms Smyth stated in evidence that as ‘a matter or courtesy’ she would have gone back to the claimant at that point.  This was getting perilously close to discussing matters which she was not permitted to discuss.  However, in any event, whether or not Ms Smyth, ‘as a matter of courtesy’, would have gone back to the claimant’s representative is arguably beside the point.  The clear indication at that point was that only the acceptance of the respondents’ representative was required to crystallise the agreement and therefore to require the notification of settlement to the tribunal.  

18.	The only substantive amendment to this new set of settlement terms was that the first respondent was required to agree to pay the settlement monies by BACS to a named account in the Employment Law Service within 14 days of receipt of the agreement signed by or on behalf of the claimant.  The previous ‘draft’ terms had referred to payment by cheque.  On the following day, the respondents’ representative e-mailed Ms Smyth at 9.03 am to confirm that he had amended the agreement to reflect payment by bank transfer to the nominated bank account.  He had also corrected the spelling of the names of two of the individual respondents and of Canary Wharf.  There was no change of any substance or of any significance in any of that.  It does not appear that further agreement from the claimant was required at that point to any of those amendments.  Certainly there was no debate about any of those points.

	It is plain from that e-mail and from two subsequent telephone calls from the respondents’ representative that morning that the respondents were nervous of the agreement being signed by the claimant’s representative and that they asked for an updated form of authority from the claimant or alternatively that the claimant should sign the agreement.  

19.	The respondents’ case is that the agreement had crystallised at that point, despite the concerns expressed by the respondents in relation to the payment going straight to the ELS bank account without either an updated form of authority or the claimant actually signing the agreement.  Their position is that this was a separate and ancillary point to the substantive conciliation agreement which had been completed.

20.	It is clear that a Sinead O’Doherty in the respondents’ HR Department had stated to Mr Bloch that she needed approved signatures for audit purposes to release payment to someone other than the employee.  It is equally clear that the respondents’ representative e-mailed Ms O’Doherty that:-

“If we get confirmation Martins is authorised to sign then it is absolutely normal to make payment to a representative’s firm.  I will revert to you in due course.  I would however point out that once both parties notify the LRA, the case is withdrawn by the tribunal and can only be resurrected if there is bad faith on part of the Conciliation Officer.  Signature is not necessary on the actual form although of comfort.”

21.	The issue is therefore whether the substantive terms of the agreement had crystallised at this point on 13 March 2013 and whether the only remaining points requiring resolution appeared to be one in relation to the actual method of paying the money and a technical matter concerning whether the claimant signed the agreement or whether an updated authority would be produced by the claimant’s representative enabling him to sign the agreement.  In all of this I bear in mind that, where the Labour Relations Agency is involved, a signed formal agreement is not actually necessary to constitute a binding conciliation.

22.	On 20 March 2013, the respondents’ representative notified the Labour Relations Agency that he was going on holiday and that in his absence Ms Kathryn McCormick would have carriage of the matters.

23.	Before leaving, the respondents’ representative e-mailed the Labour Relations Agency asking Ms Smyth to contact Ms McCormick if there was any further development in relation to the form of authority from the claimant’s representative.  

24.	On 28 March 2013, Ms McCormick e-mailed the Labour Relations Agency asking for an update.  The Labour Relations Agency confirmed that they had received nothing back from the claimant’s representative but were going to chase that matter up.  

25.	On 10 and 16 April 2013, Ms McCormick again asked for an update and again the Labour Relations Agency confirmed that they had not received any communication from the claimant and they stated they would follow it up.  

26.	On 19 April 2013, the Labour Relations Agency e-mailed Ms McCormick to confirm that they had been in contact with the claimant’s representative.  The claimant’s representative had stated the claimant was currently unwell and that he hoped to revert with an update very soon.  The Labour Relations Agency was, of course, prevented from indicating further in evidence what had been the subject-matter of that discussion.  However, in the e-mail, to Ms McCormick, which they could disclose, it is clear that there is nothing which suggested that the settlement had not been concluded or that, as suggested in evidence to this tribunal by the claimant, he regarded the settlement sum was ‘derisory’.  If indeed the claimant regarded the £30,000.00 sum as derisory, it was taking a remarkably long time for that position to be articulated.  The claimant sought to argue that he had been medically incapable of considering his position in March 2013.  However that was not supported by any relevant medical evidence and was not raised by the claimant’s representative until 19 April 2013.

27.	On 3 May 2013, Ms McCormick again e-mailed the Labour Relations Agency asking for an update.  The Labour Relations Agency again confirmed there had been nothing further.  They stated they would chase the matter up.  

28.	On 9 May 2013, the Labour Relations Agency confirmed with the Engineering Employers Federation that the claimant’s representative had stated that the claimant had been chased up about the matter and that the claimant’s representative was awaiting a response.  It is notable that the claimant’s representative appears to have made it plain that he had provided a letter of authority to the Labour Relations Agency, presumably at an early stage in this action.  That letter of authority has not been produced to the respondents or to the tribunal.  It appears to have been dated 29 July 2011.  According to the Labour Relations Agency record, the claimant’s representative stated, on 9 May 2013, that he was authorised to act.  Again, there is nothing in this record which indicates anything from the claimant’s representative being communicated to the Engineering Employers Federation to the effect that anything was still open for discussion other than the technical matters relating to the actual payment.  

	Similarly, the tribunal heard no evidence from the Labour Relations Agency which indicates that the substantive terms of the settlement had not been agreed.  Without the claimant’s consent, which was withheld, the Labour Relations Agency could not provide any such evidence even if it existed.  Since any such communications between the claimant or his representative and the Labour Relations Agency would have assisted the claimant’s argument, and since there has been no explanation of the claimant’s refusal to give consent, I can only infer that no such communications exist.

29.	On 4 June 2013, the Labour Relations Agency e-mailed the Engineering Employers Federation and stated:-

“I’m afraid there’s been nothing further from Samuel Martins at present.  Is it likely that the offer and terms will remain on the table indefinitely?”

	There was no immediate response from the Engineering Employers Federation.

It would therefore appear that the Labour Relations Agency felt at this point there had been no settlement.  That is of course not determinative.

30.	On 26 June 2013, the Engineering Employers Federation telephoned the Labour Relations Agency to state, inter alia:-

		“Matter tentatively settled.”

The Federation also indicated that a letter had been forwarded to the claimant’s representative and copied to the claimant on 24 June 2013 because they were concerned that the claimant was perhaps not up to speed on progress in the case.  

That letter from the Engineering Employers Federation stated again that:-

	“The above matter was tentatively settled on the terms which included … .”

It also went on to state:-

“The respondent is not prepared to make this offer for an indefinite period of time.”

31.	In evidence the respondents’ representative stated this was a technical manoeuvre designed to force the claimant’s representative or the claimant to act and to finalise the arrangements for payment.  He stated that he believed it was settled and he was simply attempting to speed matters up.  

Decision

32.	The issue in this case is whether or not the parties had agreed to settle the matter on terms through the auspices of the Labour Relations Agency.

It is clear from the records relating to 12 and 13 March 2013 that there had been settlement discussions.  Those discussions led to an agreement between the parties’ representatives.  That agreement had then been formalised by the Labour Relations Agency.  It is equally clear that the claimant’s representative put forward one amendment and one amendment only, ie an amendment in relation to the actual method of payment, ie by BACS to a named account.  It seems equally clear that no further amendment was communicated by the claimant or on behalf of the claimant by the Labour Relations Agency to the respondents’ representative.  

In Allma the EAT stated:-

“Where one party makes an offer to another that is sufficiently definite to indicate an intention to be bound which covers the essentials of the contract in question, and it is accepted, a contract is concluded.”

This is a difficult case to resolve.  There are points which support the respondent’s case and points which support the claimant’s case.

On 13 March 2013, the substantive terms appear to have been clarified.  What was said or done, insofar as the evidence before the tribunal, on behalf of both the claimant and the respondents went far beyond a simple willingness to negotiate or an invitation to treat.

33.	It is also clear that the Labour Relations Agency required only the acceptance of the respondents’ representative before approaching the tribunal to notify withdrawal.  It is not totally clear why the Labour Relations Agency did not do so on or after 13 March 2013 but it appears likely that they were awaiting resolution of the technical matters relating to payment before they did so.  Whether or not the Labour Relations Agency Conciliation Officer would have ‘as a matter of courtesy’ reverted first to the claimant’s representative is nothing to the point.  It seems arguable that the matter had crystallised at that point.  The correction of spelling mistakes and the request for a form of authority or for an actual signature from the claimant does not seem to be particularly crucial and goes nowhere to the substance of the matter.  The terms of the substantive agreement had been discussed, agreed and arguably formalised by the acceptance of the respondents’ representative.  A signature from the claimant’s representative or a signature from the claimant was not actually required to make that agreement enforceable.  

34.	If the arrangement had been up for further negotiation or agreement as to the substantive terms, I would have expected that to have been made plain by the Labour Relations Agency or by the claimant’s representative in communications with the respondents’ representative in March and the first part of April.  This was not done.  It appears clear from the Labour Relations Agency’s own records that they were simply chasing up the claimant’s representative in relation to the updated letter of authority or alternatively an agreement for the claimant to sign the eventual agreement.  Neither the Labour Relations Agency or the claimant’s representative queried the settlement terms for weeks.  No relevant medical or other evidence has been produced to explain why this would be the case.  During the hearing, the claimant sought to rely on a medical report covering an entirely different period, when he knew or ought to have known that this was an important point which should have been supported by evidence, if such evidence existed.

35.	Given the clear position taken by the claimant in relation to confidentiality with the Labour Relations Agency, I can only infer that there was nothing in those communications which could support the claimant’s position, ie could support the position that the exchange on 12 and 13 March 2013, with only one amendment proposed by the claimant and accepted by the respondents, was subject to an unspecified further period of consideration by the claimant.   The figure of £30,000.00, which  the claimant in evidence described as ‘derisory’ was one which had initially been proposed by the claimant’s representative which I accept was on instructions.

	So far, everything points to the completion of a conciliated settlement.

36.	There are some issues which are difficult to understand.  On 4 June 2013, the Labour Relations Agency asked whether it was ‘likely that the offer and terms will remain on the table indefinitely?’.  That may indicate a misunderstanding of what was the position up to that point.  The Engineering Employers Federation appears to have confused issues further by, on 26 June 2013, referring to the matter being ‘tentatively settled’.  A claim is either settled or it is not.  ‘Tentative’ settlement is problematic.  The word ‘tentative’ does create a real doubt about the position.  That wording was again repeated in the letter of 24 June 2013 together with a statement that the Engineering Employers Federation was ‘not prepared to make this offer for an indefinite period of time’.  

	Again, the use of the word ‘offer’ creates real uncertainty about the position of the parties.  

37.	The understanding of the Labour Relations Agency is not determinative or of particular significance.  The intention and the understanding of the position by the two potentially contracting parties however is crucial.

	The fact that the claimant’s representative proposed the £30,000.00 settlement in the first place undermines the claimant’s assertion that the sum was considered ‘derisory’.  The fact that the claimant’s representative did not put forward more than one amendment to the initial drafts sent by the Labour Relations Agency is also significant.  The technical matters relating to the manner of payment, ie the updated letter of authority or the claimant’s signature, were not in any sense crucial.  The claimant did not state for some weeks after 13 March 2013 that the substantial term of agreement were still open.  The claimant’s representative did not make that point either.  The case put forward now by the claimant that he was, for medical reasons, incapable at that time of giving instructions is unsupported by the evidence and is in any event inconsistent with the actions of his authorised representative.  

	That said, the use of the words ‘tentative’ and ‘offer’ by the respondent’s representative introduce real doubt as to the position.  The respondents did not say “the matter has been settled – get a move on and put the formalities for payment in place” or words to that effect.  They specifically opened the possibility of the withdrawal of the ‘offer’.  That is inconsistent with a conciliated agreement which was enforceable at that point.  

38.	There is no easy or clear answer to this.  The evidence points both ways.  My view, on the balance of probabilities (just), is that it has not been established that a substantive agreement had properly crystallised on 13 March 2013.  The claimant is therefore not estopped from pursing these claims in the industrial tribunal.  The claims will be listed for a Case Management Discussion.

39.	It is, however, clear that an offer of £30,000.00 was on the table.  It is important therefore that the claimant and his representative understands that if the claimant pursues his claims and does not succeed, or if he receives the same or a lesser sum, there may well be a costs issue.

Vice President:

Date and place of hearing:	14 November 2013, Belfast

Date decision recorded in register and issued to parties: