J Edward v North London NHS Foundation Trust

Rule 64 Employment Tribunal Rules of Procedure 2013 provided:

“If the parties agree in writing or orally at a hearing upon the terms of any order or judgment a Tribunal may, if it thinks fit, make such order or judgment, in which case it shall be identified as having been made by consent.”

Rule 62 Employment Tribunal Procedure Rules 2024 is in the same terms.

This appeal is from a decision of the employment tribunal, giving a remedy judgment in terms based upon those to which both parties had earlier indicated they consented, but to which the claimant had later indicated that he no longer consented. It raises issues in particular about the interpretation and scope of rule 64 Employment Tribunals Rules of Procedure 2013 (now rule 62 Employment Tribunal Procedure Rules 2024) concerned with “Consent orders and judgments”.

The claimant was employed by the Tavistock and Portman NHS Foundation Trust (in the shoes of which the respondent now stands), in a band 5 role, from May 2016. It was subsequently decided that he was not capable of working at band 5 level. He was dismissed in May 2018. He brought an employment tribunal claim raising various complaints. He was a litigant in person.

In a decision arising from a full merits hearing in 2020 at London Central, before EJ Goodman and members, the tribunal upheld a complaint of victimisation by failing to redeploy the claimant to a band 4 role and, hence, dismissing him. The other complaints were dismissed.

There followed a remedy hearing on 21 April 2021, resulting in a further decision in which the tribunal awarded compensation. In November 2019 the claimant had secured an interview for a job at Public Health England (PHE), but had not been successful. He had been in another job since the beginning of 2021, but this was due to end in September 2021. The award included an adjustment that the tribunal made to reflect its conclusion that the claimant had unreasonably failed to mitigate his losses, by not applying for any NHS posts between November 2019 and December 2020. It also included an element for future loss, including the future period beyond September 2021.

The claimant appealed, and the respondent cross-appealed, against various aspects of the remedy decision. At the appeal hearing, before DHCJ Gavin Mansfield KC, as he then was, the claimant had pro bono counsel. In his reserved judgment and order, sealed on 6 May 2023, the judge allowed the appeal “on the question of failure to mitigate in respect of past loss” and remitted that matter for rehearing. Certain other discrete aspects of the appeal, and the cross-appeal, were allowed, and their financial impacts on the award adjudicated, by consent. Certain other aspects of the tribunal’s interest and tax calculations were set aside, to be recalculated by the tribunal at the remitted hearing. The remainder of the appeal, including in respect of future loss, was dismissed.

A further remedy hearing was due to take place on 6 February 2024. On 18 January the respondent’s solicitors emailed the tribunal a draft consent order in the following terms:

“UPON the parties having agreed terms on which to resolve the issues remitted by the Employment Tribunal

AND BY CONSENT the Tribunal orders that:

1 Following the Employment Appeal Tribunal’s Judgment of 17 March 2023, sealed on 6 May 2023 (“EAT Judgment”), the award issued to the Claimant (as per the Employment Tribunal’s Judgment on remedy dated 13 May 2021) shall be varied, increasing the Judgment sum by £14,583.09 to the total of £80,527.09.

2 In respect of the remitted issue regarding mitigation, the Respondent shall pay the agreed sum of £9,660 (inclusive of interest and grossing up) to the Claimant within 28 days of the date of this Order being sent to the parties in full and final settlement of all outstanding sums claimed by the Claimant in the Employment Tribunal claim under case number 2205825/2018.

3 The Remedy Hearing listed on 6 February 2024 shall be vacated.”

On 25 January the claimant emailed the tribunal stating that he had agreed to settle the case as proposed in that draft consent order “despite it was not what was agreed between the parties in principle”. He elaborated that he lacked confidence in the tribunal panel. I note that, following the liability decision, he had unsuccessfully applied for it to recuse itself from sitting on the first remedy hearing. He also asserted that the tribunal had made two particular errors in the 2021 remedy judgment, relating to the status of PHE and to job references for NHS positions. I will return to that. He considered it a waste of time to pursue the matter to the same panel. He concluded: “For those reasons, I have agreed to settle the case with the respondent on the terms of the draft consent order.”

The remedy hearing listed for 6 February 2024 did not take place. Having heard no further, the claimant emailed the tribunal on 18 April. The tribunal then wrote to the parties at the direction of EJ Goodman on 7 May. The letter stated that, following the January correspondence, on the basis that the parties had settled, a legal officer had been asked to prepare a judgment dismissing the claim on withdrawal; but there was no record of this having been done. The parties were asked whether the claim had settled or whether a remedy hearing was still required. Also on 7 May, however, a judgment dismissing the claim upon withdrawal was signed by the legal officer and sent to the parties.

On 15 May 2024 the claimant emailed the respondent’s solicitors that the agreement had not been taken forward, he had not been paid, he was not interested in pursuing the agreement further, and he would be applying for a remedy hearing. The respondent’s solicitors replied that payment had not been made in the absence of an order, the tribunal appeared to have mistakenly treated the claim as withdrawn, and that, as matters stood, it was no longer live and could not proceed to a hearing. They proposed to write asking for the error (of issuing the 7 May order) to be corrected and for an order to be issued in the terms previously requested. They asked the claimant to confirm if he agreed, but added that in the absence of a response by 12pm the next day, they would make their application.

On 16 May 2024 the claimant wrote to the tribunal indicating that he wanted the case listed for a hearing, as the claim had not been settled, and that he had no intention to rely on the application by the respondent for a consent order. He also requested the tribunal to correct the 7 May judgment, which, he wrote, had been made in the mistaken belief that he had withdrawn his claim.

On 30 May 2024 the respondent’s solicitors wrote to the tribunal asserting that the dismissal judgment was correct, but also submitting that it appeared that the failure to issue the consent order was the result of oversight or error. They reattached the January draft order and requested that it now be issued forthwith. They submitted that it would not be in accordance with the overriding objective to grant the claimant’s request for a remedy hearing, which they opposed. On 3 June the claimant replied opposing the respondent’s application and asking again for a remedy hearing to be listed. EJ Goodman directed that there be a hearing to review whether the claim had been settled.

There followed two preliminary hearings before EJ Goodman sitting alone at London Central, by CVP, on 8 July and 2 October 2024. At both the claimant was in person and the respondent was represented by Mr Tomison of counsel. This appeal is, specifically, against the decision from the 2 October hearing, but it is necessary first to consider the decision from the 8 July hearing.

In her reasons arising from the 8 July hearing the judge identified areas of uncertainty as to precisely what sums in respect of remedy had been paid by the respondent up to that point, whether to the claimant and/or to HMRC. She gave directions with a view to clarifying this.

The judge continued:

“18.

The case law on a consent order made a tribunal without an underlying settlement agreement is to the effect that it is not wrong to dismiss a claim on agreed terms despite there being no relevant settlement agreement but that such an agreement has to be considered by the tribunal – Mayo-Deman v University of Greenwich 2005 IRLR 845 (where a claimant has signed an agreement but did not attend the hearing) and Carter v Reiner Moritz Associates Ltd 1997 ICR 881. As stated in the latter: “We can see no reason at all why adult parties should not reach an agreement subject to the order being made by the court. The court retains a discretion as to whether it will make the order sought.”

19.

It is clear enough from the exchange of emails in January 2024 that the claimant consented to the terms of the order, albeit under protest. The tribunal retains a discretion to make the order. In view of the apparent dispute on what money has been paid and what remains to be paid, I regret that there must be a further hearing to consider the terms.”

The judge went on to state why she considered it to be in the interests of justice to revoke the 7 May legal-officer judgment upon reconsideration, which she did. In view of the outstanding issues about what had in fact been paid, she directed that there be a further hearing before her to decide whether the claim should be dismissed “on the original agreed terms, or any agreed amended terms” or whether a further remedy hearing before the full tribunal panel should be held.

The further hearing before the judge took place on 2 October 2024. A remedy hearing, before the full panel, had also been listed for 21 October 2024. Following the 2 October hearing, a written order with reasons was sent to the parties. The order was expressed in the following terms.

“1.

By consent, the tribunal’s award dated 13 May 2021 is varied by increasing it by £14,583.09 to the total of £80,527.09.

2.

The total sum has been paid to the claimant, or to HMRC on his tax account.

3.

The claimant has also been paid interest at 8% on the balance unpaid from February to August 2024.

4.

The remedy hearing on 21 October 2024 will not take place.”

The judge began her reasons by reproducing a passage from her July reasons giving the litigation history, and summarising the orders she had made in July. She had heard from the parties, and also considered their previous representations. They had clarified what sums had been paid. Since 8 July the respondent had paid the “sum agreed in January” in respect of mitigation, of £9660, together with interest from 8 February 2024 at 8%. She commented: “In other words, he has now been paid the agreed sums and interest, whether to himself or to HMRC on his tax account.”

I will set out the remainder of the reasons in full:

“Relevant Law

9.

This case concerns a claim under the Equality Act, which by section 142 [sic] prohibits contracting out of the At except through conciliated settlement or settlement agreement as defined in section 147.

10.

Rule 64 of the Employment Tribunal Rules of Procedure 2013 however provides:

64.

If the parties agree in writing or orally at a hearing upon the terms of any order or judgment a Tribunal may, if it thinks fit, make such order or judgment, in which case it shall be identified as having been made by consent.

11.

The words ‘if it thinks fit’ indicate that the tribunal has a discretion whether to give effect to the parties’ agreement. Such a case was Carter v Reiner Moritz Associates Ltd 1997 ICR 881. As stated there: ‘We can see no reason at all why adult parties should not reach an agreement subject to the order being made by the court. The court retains a discretion as to whether it will make the order sought’.

12.

The claimant has explained that when he consented to the consent order being made earlier this year, he considered himself "under duress" and "mentally forced to agree to a consent order" because he considered the tribunal had been biassed (one of his grounds of appeal to the EAT) and yet remedy had been remitted to the same tribunal. He also explained today that there had been discussion between the parties of a larger sum, at time when he had been represented by counsel on the appeal, but Treasury approval had not been forthcoming. He had then decided to accept the terms set out in the consent order. In response to the respondent's argument that there had been a binding contract between himself and the Trust when he accepted these terms, he said ‘it will not become a binding contract until the Tribunal makes a consent order’.

13.

Questioned on why he had changed his mind about having the matter heard by the same tribunal, he said he had now ‘faced his fear’.

14.

The respondent relies on their offer and the claimant's acceptance, in the terms of the consent order. The claimant only changed his mind in his email to the tribunal of 15 May, when he said that because ‘the matter did not move forward’ after he consented to a consent order, ‘the claimant has decided to settle the claim by means of a hearing at the Employment Tribunal, and he has no intention to rely on the application made by the respondent for a consent order from the ET to settle the claim’.

Discussion and Conclusion

15.

It was clear in February 2024 that the claimant consented to compromised terms set out in the consent order. His stated reason for agreeing with reluctance (tribunal bias) does not indicate he was not in his right mind, unduly influenced or otherwise lacking capacity. He had also been advised buy counsel on settlement generally although probably not on this amount. It is also clear that he changed his mind when the resolution was delayed, as the respondent would not pay without an order. He has now been paid. He has also received interest at the judgment rate for the period of delay.

16.

He was offered settlement terms as a compromise. He agreed to the terms, and to a consent order being made to bring the proceedings to an end. There is a contract. There are no factors suggesting the claimant did not understand that the contract would be binding on him or that he has been misled or that the tribunal should otherwise exercise discretion and refuse the order. The respondent had the benefit of the money for longer than would have been expected but he has now received interest at the judgment rate, which is mor than a commercial rate or the rate of inflation.

17.

The tribunal therefore makes the order in the agreed terms.”

The claimant’s notice of appeal set out four grounds of appeal. Grounds 1, 2 and 3 (only) were directed by the judge who considered them on paper to proceed to a full appeal hearing.

At that hearing, before me, the claimant represented himself. The respondent was represented by Mr Young of counsel. In the run-up to the hearing the claimant had applied to amend ground 3, an application that the respondent had opposed. There were also some issues about the bundles. At the outset Mr Young indicated that the respondent no longer objected to the proposed amendment to ground 3, so I granted that, and have considered ground 3 in its amended form. It was also sensibly agreed that either party could make submissions on any of the disputed documents.

The parties had put in skeleton arguments and other written submissions, and I have taken all of this material into account. I heard a full day of oral argument. I had two, overlapping, authorities bundles. At the start of the hearing I handed the parties a further authority:Times Newspapers Limited v Fitt [1981] ICR 637. This included an extract from Council of Engineering Institutions v Maddison [1977] ICR 30. Just before lunch Mr Young handed up a full copy of Maddison as well. When making his oral reply submissions, the claimant asked to be allowed to put in a further written submission about those two authorities, which I permitted by way of a supplemental reply submission. This was received on 31 July 2026 and I have taken it into account.

The claimant is a litigant in person, and the framing of his grounds of appeal reflects this. His skeleton argument and other written and oral submissions were, respectfully, lengthy and repetitive. Mr Young, fairly and sensibly, acknowledged the nature of the substantive over-arching issue raised by this appeal, as briefly summarised by me at the very start of my present decision, in addition to the more discrete and narrow issues particularly raised by the three numbered grounds (as amended).

In setting out the following brief summary of the essence of the key points of challenge advanced by this appeal, I have, to some extent, used my own words, in order to capture and convey what appear to me to have been the substance or gist of those key points. They are as follows.

While, in January 2024, the claimant had indicated that he consented to the tribunal making an order in the proposed terms sent to the tribunal at that time, he had subsequently made it clear to the respondent and the tribunal that he no longer consented, and he wanted the matter to proceed to a remedy hearing in respect of the remitted issues, as had previously been listed. The effect of section 144 Equality Act 2010 was that the January 2024 draft order could not be relied upon to assert that his right to a further remedy decision had been compromised, because it was not a qualifying settlement agreement within section 147. Given that, and that he no longer consented to an order being made in its terms, the tribunal could not make a consent order or judgment pursuant to rule 64.

The claimant also contended that in any event, if the tribunal had a discretion, the reasoning in the October 2024 decision did not amount to a proper, judicially-reasoned exercise of it.

In addition, the grounds of appeal raised the following more discrete challenges.

First, in any event, the effect of the 7 May 2024 dismissal had been to wash away the previously proposed consent order, and the tribunal could not thereafter properly revisit the matter. Secondly, in any event, the respondent’s email of 15 May amounted to it taking the stance that the prior agreement was null, void, or not valid or unenforceable, also precluding further reliance on it. Thirdly, it is said that, if the tribunal did potentially have the power to make an order in this case pursuant to rule 64, it erred in concluding that it “thinks it fit” to do so, in circumstances in which there were material errors in the 2021 remedy judgment which had not been corrected by it. These errors related to the status of PHE and the position regarding job references for NHS positions.

In summary, the key points of the respondent’s position are as follows.

First, the respondent accepted that the January 2024 proposed consent order, to which the claimant had signified his agreement at the time, did not amount to a qualifying settlement agreement, and so, in so far as its provision for a full and final settlement might otherwise have precluded the claimant from seeking a remedy hearing, it was unenforceable.

Mr Young also confirmed that the respondent accepted that the claimant had subsequently effectively revoked his consent to an order being made in the January terms. It also accepted that he had never withdrawn his claim. It also accepted that, whereas, where there is a withdrawal, it is immediately effective and cannot later be unilaterally revoked, the present claimant could, and did, effectively resile from his previous position, that he had consented to the proposed consent order, before any such order was made. I add that I consider that all of those concessions were rightly made.

Mr Young however contended that the authorities establish that it is not a precondition of the tribunal being able to dispose of a claim or complaint, by making an order by consent in terms that have been agreed by the parties, that such agreement amount to a qualifying settlement agreement (or be made in other circumstances that would mean that section 144, or its equivalent, did not apply). This was not a precondition to the tribunal being able to make a consent order pursuant to rule 64.

However, Mr Young also accepted that, if, contrary to his case, the 2 October 2024 order was not properly made in exercise of the rule 64 power, then it could not stand. It did not amount to a reasoned adjudication of the remedy mitigation issue on its merits, in the way that would have been required of the full tribunal panel, had the matter proceeded to a remedy hearing before it. However, crucially to its defence of this appeal, the respondent contended that, as a matter of construction, rule 64 was capable of applying in a case, such as the present, in which a party had previously consented to the terms of a proposed order disposing of their claim, but had, by the time when the tribunal was considering the position, effectively revoked their previous consent.

Mr Young further submitted that, where the rule 64 power does arise, it confers a discretion upon the tribunal, to be exercised in the interests of justice and in accordance with the overriding objective, taking account of relevant considerations, but not otherwise specifically governed by any legal rule. In this case the tribunal properly took into account that: the claimant had previously agreed substantially the same terms (though non-bindingly); he had not at the time been misled, placed under undue pressure or lacking in capacity; he had at an earlier stage been advised on settlement proposals (albeit financially different terms) by counsel who had represented him in the EAT, and so it could be inferred that he had understood, when agreeing to the January terms, what their effect would be; and he had changed his mind when resolution had been delayed and the respondent had not yet paid him, but he had since been paid the sum previously agreed, with interest at the judgment rate.

I will start with a preliminary point of construction of what was rule 64 (the current rule 62). The rule, headed “Consent orders and judgments”, provided:

“If the parties agree in writing or orally at a hearing upon the terms of any order or judgment a Tribunal may, if it thinks fit, make such order or judgment, in which case it shall be identified as having been made by consent.”

I agree with Mr Young that the correct way to parse this sentence is to read the words: “at a hearing” as being governed only by the words: “or orally”, that is to say, as if it were punctuated: “… in writing, or orally at a hearing, …”. In substance, the point is that the rule is not confined in its application to orders or judgments agreed at a hearing (whether in writing or orally). It may apply also to an order or judgment agreed in writing at any time during the life of the claim.

This reading accords with the long-established practice, that the parties may, if they have agreed proposed terms for a judgment or order, write in to the tribunal and ask that it be made by consent in those terms. The tribunal is not required to convene (or wait for) a hearing in order to do so. However, the rule also allows for the possibility that the parties may orally invite the tribunal to make an agreed judgment or order at a hearing – though I observe that in such a case the tribunal may require them to reduce the proposed terms to writing before they are considered.

This interpretation is also supported by the history of the relevant rules. Rule 13 of the Rules of Procedure 1993 provided at (2)(b) that the tribunal may “if the parties agree in writing upon the terms of a decision to be made by the tribunal, decide accordingly”. Rule 15(2)(b) Employment Tribunal Rules of Procedure 2001 was to similar effect. Rule 28 Employment Tribunals Rules of Procedure 2004 provided at (2) that if the parties agreed in writing upon the terms of any order or judgment, the chairman or tribunal could “if he, or it, thinks fit, make such order or judgment”. All of these rules required the proposed order or judgment to be in writing, but none of them confined the power to the context of a hearing. Against that background it is clear the innovation of the 2013 Rules was simply to allow for the additional possibility that, while the proposed terms could be put forward at any time in writing, at a hearing they could also be put forward orally.

Next, I turn to whether the tribunal can make a binding consent order where the agreement of the parties to the proposed terms is one to which section 144 of the 2010 Act (or its equivalent in other legislation) applies (and is not disapplied by it being a qualifying settlement agreement or one made with the assistance of an ACAS officer), so that a full and final settlement provision is unenforceable by the respondent. Two authorities were cited by EJ Goodman on this point.

The first is Carter v Reiner Moritz Limited [1997] ICR 882 (EAT). The passage cited by the judge does lend support to the proposition that the tribunal can make an order in terms agreed by the parties, even though the settlement provision is unenforceable. It states that the parties can make an agreement “subject to the order being made by the court” and the agreement “will not become enforceable unless and until an order of the court has been made.” (Emphasis added by me.)

However, how this passage sits within the overall reasoning of the EAT is not entirely clear. The tribunal had awarded compensation in respect of unfair dismissal. It found that section 140 Employment Protection Consolidation Act 1978 (equivalent to section 144 of the 2010 Act) meant that the parties could not bindingly compromise the remedy claim; but it also went on to (purport to) assess compensation in the same amount that the parties had agreed. The employee appealed the assessment of compensation and the employer cross-appealed the finding that section 140 applied.

In the cross-appeal counsel for the employer appears to have contended that, because the original claim had included a complaint of breach of contract (to which section 140 did not apply), section 140 also did not bite on the unfair dismissal complaint. The EAT said that argument was “right” and allowed the cross-appeal. Respectfully, I find that construction to be problematic, and consider that the better view is that, where a claim includes a complaint of breach of contract, it is only that complaint to which the section does not apply. It still applies to other statutory complaints.

Further, counsel for the employer also submitted that there was no restriction on the parties making a binding agreement “subject to it being embodied in a court order”, a proposition that the EAT also accepted. A further complication is that the tribunal actually purported to assess the compensation in the same amount as the parties had agreed, but the EAT considered that, if so, they had not explained how, and that if the tribunal had wanted to simply give effect to the agreement the parties had reached, it should have said so. But, even though they had not, the EAT appear to have dismissed the appeal on the basis that they could have achieved the same result in that way.

It is therefore unclear whether the ratio is that the agreement was binding because section 140 did not bite on the unfair dismissal claim, as the claim form also included a complaint for breach of contract, or that the decision of the tribunal should stand, because section 140 did apply, but the tribunal could have simply decided to give effect to the parties’ agreement, even though that is not what it actually did. Either way, I do not regard Carter as clear binding authority to the effect that the answer to the question I have posed at [38] above is “yes”.

The other authority cited by EJ Goodman, Mayo-Deman v University of Greenwich [2005] IRLR 845, is less tortuous. In that case, shortly before a hearing of discrimination complaints, the representatives agreed a sum to be paid in full and final settlement of them. Their exchange of emails did not comply with the then applicable provisions equivalent to section 144. The employee’s representative asked the employer’s representative to notify the tribunal that agreement had been reached, so that she did not have to attend the hearing. Counsel for the employer attended the hearing, as did an advocate for the employee. The tribunal found that that advocate had not been aware of the settlement correspondence, but, when shown it, had accepted that the matter had been “withdrawn”. It appears that the tribunal dismissed the claim on the basis that it had been settled.

The EAT dismissed the employee’s appeal. In the course of its reasons it said, at [19]:

“In our judgment there is nothing in law which requires an employment tribunal to ensure that the terms agreed are binding within either the Sex Discrimination Act or the Race Relations Act before it permits a claim to be dismissed when the parties have reached what is otherwise a contractual agreement. It seems to us therefore that on the basis that there was a settlement, albeit not complying with the two Acts, the tribunal were entitled to reach the conclusion that they did and there was no error in law in their doing so.”

This passage again provides some support for the general proposition that the tribunal can make an order which, in practice, gives effect to an unenforceable agreement to settle. But I note that, in that case, the tribunal was not asked to, and did not, make an order by consent, but, rather, dismissed the claim on the basis that it had been withdrawn; so once again, this passage may be obiter.

In Fitt (see [21] above) solicitors acting for a number of claimants of unfair dismissal wrote following successful negotiations for their reinstatement, asking the tribunal to order that “their applications be withdrawn”. The employer’s solicitors wrote consenting and the tribunal made an order in the agreed terms. More than a year later the solicitors wrote that one employee’s name had been included in error, and that he wished to pursue his claim. The tribunal subsequently acceded to a request by the employee for a certificate of correction. The employer appealed from that decision.

The appeal was allowed on the basis that the employer had not had the opportunity to make representations. But the EAT also went on to consider whether it would, in any event, have been open to the tribunal to vary the earlier order, and whether the fact that section 140 of the 1978 Act applied to the underlying agreement made a difference. It concluded that it did not. Once the decision had been properly made by the tribunal, in the absence of fraud or misrepresentation, that should be the end of the matter. Once the case had been disposed of by the tribunal “the purpose of section 140 is exhausted”. (See [1981] ICR at 643A-E.) That again supports the conclusion that the tribunal does have the power to make an order in agreed terms, notwithstanding that the full and final settlement provision of the agreement itself would have been unenforceable. But once again it might be said that this passage was strictly obiter, given the initial basis on which the appeal was allowed.

Nevertheless, Fitt also makes the important point that this route to resolution involves the matter being put before the tribunal, and a decision being made by the tribunal itself. For that reason, I do not consider that rule 64 (now rule 62) should be regarded as somehow ineffective because it conflicts with the various statutory provisions concerning contracting out. I note also that the rule expressly empowers the tribunal to make an order in terms which the parties have agreed, but does not compel it to do so. The tribunal “may” do so “if it thinks fit”, enabling it, in the given case, to decline to do so, if, for some particular reason, it considers that it would be not be in the interests of justice to do so. But there is nothing in the rule to indicate that if the settlement provision in the underlying agreement would be unenforceable that would preclude the exercise of the rule 64 power. Had Parliament intended there to be such a significant limitation on its use, it would have so provided.

I am therefore not entirely convinced that there is any prior EAT authority of which the ratio provides a definitive binding answer to this question. But the framing of the rule, supported by the reasoning in Fitt, points to the conclusion that the tribunal does have the power, if it thinks fit, to make a judgment or order providing for a full and final settlement of a complaint, in terms that the parties have agreed, by consent, notwithstanding that the full and final settlement provisions of the underlying agreement would, by virtue of section 144 or its equivalent, themselves be unenforceable.

However, that is not a sufficient answer to this appeal. That is because it is essential to the respondent’s case that the rule 64 power be wide enough to apply, not only in a case where both parties currently consent to the proposed order, at the time when the tribunal purports to make it, but also, potentially, to a case in which one of the parties has earlier consented to an order in substantially those terms, although they no longer now do. Mr Young argued that rule 64 both could, and should, be interpreted as embracing such a case. In summary, his principal arguments were as follows.

Mr Young argued in his skeleton that if (as I have decided) the rule 64 power may be exercised notwithstanding that the settlement agreement is itself not enforceable by the respondent, this shows that the power to make the order stems from rule 64 and not from the parties’ agreement to settle. However, he also said in oral submissions that he accepted that there does have to have been an agreement to which the parties consented at some point. That is, as he put it, the trigger that activates the tribunal’s power. But he argued that the wording of the rule was capable of embracing a case where they had done so in the past. He submitted that the words in the rule “by consent” mean that the tribunal derives its power from the consent evidenced by the earlier agreement when it was made.

Mr Young also argued that there was nothing problematic about interpreting the rule as applying to a case where a party has previously consented to an order, but has later resiled. That, he argued, is because the discretionary power, which is subject to the duty of the tribunal to act judicially, in the interests of justice and in accordance with the overriding objective, enables the tribunal to “exercise oversight” over the previous agreement, to consider all the relevant circumstances, and to decline to make the order where it would not be in the interests of justice to do so.

Mr Young also sought to draw support from Courage Take Home Trade Limited v Keys [1986] IRC 84 (EAT). In that case, following a finding of unfair dismissal, and prior to a remedy hearing, the claimant accepted £9500 in full and final settlement of the claim, which was paid. He then sought a further award. The tribunal found that the agreement was not binding upon him, but that, in light of it, it was not just and equitable to award any further compensation, even though the measure of his loss was greater. The EAT upheld that decision. Mr Young argued that this decision lends support to the proposition that it is open to a tribunal to have regard to a previous non-compliant agreement from which a claimant has later resiled, albeit that the legal context there was different.

The short answer to these various lines of argument is, in my judgment, that the meaning of the rule is clear and unambiguous, and it simply will not bear the interpretation that Mr Young seeks to put upon it. The natural and ordinary meaning of the rule is that it enables the tribunal to make an order or judgment in terms which both the parties want the tribunal to make. It does not enable the tribunal to make an order or judgment in circumstances where one of the parties has communicated to the tribunal that they do not consent to it, and they do not want the tribunal to make it.

This interpretation is reinforced by the requirement that, if the tribunal makes an order or judgment in exercise of this power, it must be identified as having been made “by consent”. This means, in its ordinary meaning, that the tribunal has made the order or judgment on the understanding that both parties, at the time when it does so, want it to do so. It does violence to language to say that an order could be expressed to be made “by consent” when, at the time when the tribunal makes it, the tribunal knows that one of the parties does not consent and does not want the tribunal to make it.

I recognise that there may be cases where the parties have written to the tribunal asking it to make an order or judgment by consent, one of the parties has then subsequently, but in point of time before it is made, changed their mind, but there has been no communication sufficient to put the judge on notice that they no longer consent. It may be said that, in such a case, the order is still properly made by consent. But I do not need to determine how matters might stand in such a case, because in the present case the judge plainly knew that the claimant no longer consented, and indeed opposed her making the order which she in fact made, at the time when she made it.

In my judgment, this conclusion also accords with principle. In this case the starting point was that it fell to the full tribunal to determine the remedy issues that had been remitted by the EAT at a further substantive remedy hearing. A tribunal need not substantively determine a complaint, or part of it, that has been compromised by an enforceable provision in a settlement agreement. Alternatively, the complaint, or part thereof, may be withdrawn (whether or not pursuant to an enforceable settlement agreement), so that it “comes to an end” in accordance with, and subject as provided in, what is now rule 50. Alternatively the complaint, or part of it, may come to an end by virtue of the tribunal properly making a consent order pursuant to what is now rule 62.

But these are each specific and carefully delineated routes by which the tribunal may be relieved of the obligation of substantive adjudication of what was hitherto a live complaint or part thereof. The tribunal does not have a general power to determine a live complaint, or part thereof, in some other way, even if it considers that in all the circumstances of the case, including that a party previously indicated their willingness to settle on certain terms, it would be in the interests of justice to do so. What was then rule 64 and is now rule 62 simply does not confer such a power.

The claimant also relied upon the following passage in Maddison (at [1977] ICR 30, 35G-H), which formed part of a passage cited in Fitt:

“There is nothing to prevent a party from abandoning proceedings: what cannot be done is to compel him to do so, because of an agreement he has made, if he has changed his mind before he does so.”

Mr Young submitted that this part of the reasons in Maddison was obiter, as the substantive decision of the EAT was that there had not been a clear agreement by the employee to compromise his claim; but, alternatively, if there had been, it would, by virtue of the relevant statutory provisions relating to contracting out, have been unenforceable. Mr Young may be right. For that reason I have not relied upon Maddison as a binding authority when reaching my conclusion about the interpretation and scope of rule 64. But I note also, again, that in any event the respondent accepted that the January agreement was not itself a binding settlement agreement, and that the claimant had effectively revoked his previous consent by the time that EJ Goodman made her order.

I have previously expressed misgivings about the reasoning in Keys, in SPI Spirits (UK) Ltd v Zabelin [2024] IRLR 225 at [35]. But in any event Keys was, as I have described, a decision about the statutory provisions relating to a compensatory award for unfair dismissal. I consider that it offers no assistance when considering the scope, or nature of the rule 64 power.

For these reasons I conclude that the judge was wrong to embark upon the exercise that she did. It does not avail the respondent that she took into account the various factors that she did, as she was not in a position at the October 2024 hearing to make an order pursuant to rule 64 at all. The order was not, in fact, in identical terms to those that had been put forward by the parties in January, though its terms amounted to an adaptation of them. But in any event, for the reasons I have given, the judge was wrong to describe the order that she made as having been made “by consent”.

It was certainly unfortunate that, through no fault of either party, the judge did not consider making a consent order when the January correspondence was referred to her, and instead, wrongly, referred the matter to a legal officer to make an order dismissing the complaint upon withdrawal. That was compounded by the matter then drifting and by the issuing of a judgment dismissing upon withdrawal. It was not wrong of the judge thereafter to have attempted to pick up the pieces, revoking that judgment and encouraging the parties to see if they could come to an updated agreement, taking account of the payments thus far made. But none of that gave her the power to make the order she did at the October 2024 hearing, to which the claimant did not agree.

This conclusion means that the appeal must be allowed. However, I will address the more specific points raised by each of the three grounds, and some other arguments that were raised.

First, once the dismissal upon withdrawal was revoked, the position was as if it had never been made. If both parties had, at that point, still wanted the tribunal to make an order in the terms that had been agreed in January, or an updated version of them, it could have done so. The difficulty was not that the 7 May order had precluded that, but that there was no longer any agreement.

Secondly, the respondent, in its 15 May 2024 email, provided a factual explanation for why the claimant had not (yet) been paid pursuant to the January terms, being because the tribunal had not (yet) made the proposed order, which was the condition precedent to payment. It was also correct to say at that point that, so long as the 7 May order stood, the claim was at an end, so the matter could not, at that point, had proceeded to a remedy hearing. It was not contradictory for the respondent to propose at the same time that the parties invite the tribunal to revoke the 7 May order, and to make an order in the January terms. But the claimant was not obliged to agree; and he did not.

The claimant also advanced arguments by reference to Serco Ltd v Wells [2016] ICR 768 (EAT). He appears to have picked up on an observation by the judge who considered his appeal on paper, that the (July) hearing “quashed the previously approval of the consent order” and was then followed by (the October) hearing considering whether it should be enforced, and wondering it the Serco v Wells principle applied in this case. However, what was quashed at the July hearing was not a consent order in the January terms, but a judgment dismissing the complaint upon withdrawal. Once again, it would not have been wrong to then make an order in the January terms, or a version of them, if in fact both parties had, at the time, consented to that course. But the claimant did not.

The third ground of appeal, as amended, contends that, if it did have the rule 64 power, the tribunal erred in concluding that it “thinks it fit” to make an order, in circumstances in which there were material errors in the 2021 remedy judgment which had not been corrected by it. In summary the claimant says that the errors were two-fold.

First, in that remedy decision the tribunal accepted that, before November 2019, the claimant had been discouraged from applying for NHS posts because of an unhelpful exchange, around the time of his dismissal, with a member of the respondent’s HR team on the subject of a reference. However, at [29] of that decision the tribunal considered that his success in getting an interview with PHE in November 2019 should have encouraged him to apply for NHS posts thereafter. The claimant says that this reasoning proceeded on a mistaken premiss, because PHE was not an NHS employer.

Secondly, the claimant takes issue with the tribunal’s observation, at [32] of that decision, that his prospects of finding work come September 2021 (when the job he was doing at the time of that remedy hearing was expected to end) were likely to be improved by the fact that he would then – in September – have been in work for nine months. The claimant takes issue with that, because he says that an NHS employer would require references covering a three-year period, not nine months.

The claimant notes that he referred to both matters in his 25 January 2024 email to the tribunal and raised them again for the purposes of the July and October 2024 hearings. He contends that it was in any event wrong to have made the October order, given these uncorrected errors.

Like the other particular points, this point of challenge falls away, because I have concluded that the tribunal could not, as of October 2024, rely upon rule 64 at all. In so far as the claimant indicated that he wants me, as part of the outcome of this appeal, to “correct” the 2021 remedy decision, that is also not something that I could in any event do, as this is not an appeal from that decision. However, as the consequence of my allowing this appeal is that the tribunal will now have to consider the remedy issues that were previously remitted, I note the following.

First, Mr Young confirmed that the respondent accepts that it is not correct that PHE was an NHS employer (although it firmly does not accept that its witness misled the tribunal about this). Further while the claimant maintained before me that the previous EAT decision had not disturbed the tribunal’s finding in this respect, EJ Goodman, in a further decision sent in February 2025 (refusing to reconsider her dismissal of an application by the claimant for a preparation-time order), observed at [19] that he “would have had the opportunity to have this point considered” had the matter proceeded to a further remedy hearing. Mr Young confirmed that the respondent’s position is that the previous EAT decision meant that, were I to uphold this appeal (as I have), the tribunal would not, at a further remedy hearing on mitigation, be bound by its previous factually-incorrect assumption about PHE, and the claimant could present further evidence about that, and argue it afresh.

As to what the tribunal said at [32] Mr Young observed that this related to future loss, but the claimant’s previous appeal in respect of future loss had been dismissed by DHCJ Gavin Mansfield KC, and so this aspect was not within scope of what would have been (or could now be) considered at a further remedy hearing. (In any event, he argued, it would, by September 2021, have been more than three years since the claimant’s employment by the respondent had ended, and any requirement by a future NHS employer for references going back three years would not have gone back that far.)

On the former point, it is indeed clear from DHCJ Gavin Mansfield KC’s judgment (at [87] – [96]) and the terms of his associated order, that the claimant’s appeal in respect of the future loss award was considered in some detail by him, but wholly dismissed. That decision of the EAT was not the subject of any further appeal to the Court of Appeal. While the amended ground 3, and the claimant’s arguments before me, and in his post-hearing reply submission, contend that what he identified as the errors in the 2021 remedy decision “infected” the future loss assessment, the tribunal’s 2021 decision on future loss cannot now be reopened by this appeal.

Finally, on this subject, in his written reply submission the claimant noted that, in Fitt, in the course of holding that the fact that the agreement in that case seeking a consent order was not itself enforceable, did not preclude the tribunal from making such an order, the EAT stated:

“Once a decision has been properly made by the industrial tribunal on the information before it at the time, in the absence of fraud or misrepresentation that should be the end of the matter.”

The claimant submitted that it was clear to the present tribunal from his 25 January 2024 email that his consent was “reluctantly given, and conditional upon, a deeply flawed factual record” created by what he says was the respondent’s material misstatement (and he adds that the tribunal found in the remedy decision at [20] that, at the point when the decision was taken to appoint someone else to the PHE job, a reference (from the respondent) had not been taken up).

Leaving aside that, as I have noted, the respondent takes issue with the suggestion of any impropriety on its part, or that of its witness, I note that the original ground 4 of this appeal contended that the tribunal had erred because in January 2024 the claimant consented under duress, including because of these aspects of the 2021 remedy decision relating to PHE and NHS reference requirements. But ground 4 was considered not arguable, and it is not a live ground of appeal before me. In any event, to repeat, the respondent accepts that, when the matter returns to the tribunal, the mitigation issue, including arguments about what (if any) were or were not the implications of the claimant having got a PHE interview in November 2019, can be argued and adjudicated afresh.

I allow the appeal and will therefore quash EJ Goodman’s October 2024 order. This means that the matter returns to the employment tribunal on the basis that there remain live and outstanding for determination by it, the matters previously remitted to it by paragraphs 1 and 5 of DHCJ Gavin Mansfield KC’s order sealed on 6 May 2023.

The claimant asked that, were I to allow this appeal, I should direct that the further remedy hearing be before a different panel. But the subject of this appeal was EJ Goodman’s October 2024 decision. I have quashed that decision and it will not fall to be taken again. What falls now to be decided by the tribunal is the remedy matters that were remitted by DHCJ Gavin Mansfield KC. He directed remission of those matters to the same tribunal panel, unless that is not practical or possible, in which case to a different panel as directed by the Regional Employment Judge. In any event I note that EJ Goodman has retired, so at least a different judge will have to be assigned, whether or not either or both of the two lay members who sat previously are still available to sit with that new judge.

In those circumstances, the order I will make is simply that the appeal is allowed, the order of EJ Goodman arising from the hearing on 2 October 2024 (sent on 17 October 2024) is quashed, and the matter is accordingly to return to the employment tribunal to decide the remedy matters remitted by DHCJ Gavin Mansfield KC in accordance with his order sealed on 6 May 2023.