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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hammond v. Benefits Agency [2002] UKEAT 904_01_0802 (8 February 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/904_01_0802.html Cite as: [2002] UKEAT 904_1_802, [2002] UKEAT 904_01_0802

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APPEARANCES

 

For the Appellant	MISS S ROBERTSON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


HIS HONOUR JUDGE A WILKIE QC

1. This is an appeal by Mr Hammond against a Decision of the Employment Tribunal held at Watford on 23 April last year which unanimously decided that his proceedings against the Benefits Agency be stayed on the ground that the parties had concluded a binding agreement through ACAS on 9 March of that year.
2. Mr Hammond submitted a Notice of Appeal on 11 July which runs to three pages of grounds plus two further pages of comments on the Extended Reasons. In preparation for this preliminary hearing, he furnished a Skeleton Argument which runs to a number of pages, the first part of which deals with the substance of the matter, but the last part of which deals with his appeal against the conclusion of the Tribunal that there was a binding agreement. He has had the benefit, as indeed we have, of representation this morning, in the person of Sally Robertson of ELAAS and we are indebted to her for the clear and, if we may say so, ingenious argument which she has put together out of pretty unpromising material.
3. Essentially the point that she says arises is that the Tribunal erred as a matter of law in concluding that the agreement made on 9 March was one which fell outside the provisions of section 203 of the Employment Rights Act 1996. Section 203 principally provides that any provision in an agreement is void insofar as it purports to preclude a person from bringing any proceedings under the Act. There are a number of exceptions to that general rule, one of which is that the section does not apply to any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under section 18 of the Employment Tribunals Act 1996. Ms Robertson argues that the error of law is in concluding that the 9 March agreement fell within that exception.
4. She says that if one looks at the facts, as found by the Tribunal, the only conclusion is that ACAS were not engaged, pursuant to section 18 of the Employment Tribunals Act, and accordingly, the agreement is void. Section 18 of the Employment Tribunals Act imposes a duty on a conciliation officer to endeavour to promote a settlement of the proceedings, without their being determined by an Employment Tribunal, on two bases. The one which seems most appropriate is if the conciliation officer considers that he could act under this subsection with a reasonable prospect of success.
5. The facts as found by this Employment Tribunal were that Mr Hammond had been represented in the litigation by Mrs Louise Attrup of Turner and Debenhams, Solicitors, of Borehamwood. There came a time, however, on 29 January 2001 where Mr Hammond and Mrs Attrup decided that he would no longer act through her good offices and that he would act in person, and on that date he wrote to the Tribunal saying that he was acting in person and asking the Tribunal office to notify the Respondents and ACAS to that effect. Unfortunately, the Tribunal failed to act on that request and therefore throughout the period that followed, Mrs Attrup appeared on the records of the Tribunal as acting for Mr Hammond, and therefore that was the position, as far as the Respondents and ACAS were concerned.
6. Following upon 29 January, however, the waters became somewhat muddied by the exchange of correspondence between Mrs Attrup and Mr Hammond, and some four days later on 2 February, Mrs Attrup wrote to Mr Hammond a letter which reflects a state of confusion on her part as to whether he wished her to act or not. On the one hand she says:

"If you wish me to act on your behalf"

she requested him to prepare an initial draft of a witness statement. On the other hand, in the same letter she said:

"If you do not wish me to act, please let me know as soon as possible"

so that she could make arrangements to close the file. Mr Hammond simply did not respond to this letter. On 28 February Mrs Attrup wrote a follow up letter to the effect that she still needed a draft witness statement. In that letter she informed Mr Hammond that she had received communication from ACAS, communicating a settlement offer of £1000. She recommended that Mr Hammond accept that offer.

7. The position, therefore, was that she remained on the record and seemed, in that letter, to assume that she was continuing to act for Mr Hammond. Again, Mr Hammond did not communicate and there was a further follow-up letter of 8 March, requesting him to telephone as soon as he received the letter. Mr Hammond did so on 9 March and the Tribunal found that he spoke to Mrs Attrup's secretary and his instructions were clear, namely that he regarded Mrs Attrup as acting for him and that he wanted to accept the offer of £1000, certainly as a matter of principle. At that point, according to the facts found, Mrs Attrup telephoned ACAS to communicate that Mr Hammond was willing, in principle, to settle.
8. Thereafter Mr Wilkinson drafted the proposed wording of the draft COT3 agreement for her to discuss with Mr Hammond as a matter of detail. Mrs Attrup sent that draft COT3 agreement attached to a letter dated 12 March which she sent to Mr Hammond. There was then a discussion on the telephone between Mr Hammond and Mrs Attrup to explain the terms to him. She explained they were the normal terms and she explained the confidentiality clause which was contained within them. The Tribunal concluded that Mr Hammond accepted those terms and said that it was fine. As a result of that she telephoned ACAS to the effect that the terms were acceptable and at that point, Mr Wilkinson told Mrs Attrup that there was now a binding agreement made under his auspices.
9. Miss Robertson's argument is that, certainly up until 9 March when, unequivocally, Mrs Attrup resumed acting on Mr Hammond's behalf, ACAS were acting under a misapprehension in communicating the offer from the Respondent to her, that misapprehension being that they thought she was acting on behalf of Mr Hammond, whereas at that stage, at its highest, her status was ambiguous. She certainly believed that she was acting, but Mr Hammond had not formally come back to her to indicate one way or the other. Therefore, Miss Robertson says everything that happened thereafter as a result, was based on his initial misapprehension and not within the statute.
10. Whether or not that is correct as a matter of what happened prior to 9 March, it seems to us perfectly plain from the facts found by this Tribunal that from 9 March Mr Wilkinson was acting to promote the settlement with, to his knowledge, Mrs Attrup acting on behalf of Mr Hammond. He took the steps that are described in the Tribunal, leading from the position whereby Mr Hammond was expressing an interest in principle, to the point at which Mrs Attrup was furnished with the detail of the settlement and was given the opportunity to discuss it with Mr Hammond, obtained his instructions to accept it, and thereafter communicated that acceptance to Mr Wilkinson. It seems to us that, on any view, he was, in the course of those events, endeavouring to promote a settlement of the proceedings without their being determined by an Employment Tribunal. Therefore, in our judgment, it is unarguable to suggest that the restrictions on contracting out in section 203 were not, in this case, overridden by the agreement made, pursuant to Mr Wilkinson taking action under section 18 of the Employment Tribunals Act 1996.
11. Therefore, despite the ingenious and attractive argument which has been presented by Miss Robertson, we conclude that this is an appeal without any reasonable prospect of success and therefore it must be dismissed at this stage.