Miller v Barnardos

A voluntary agreement providing that an employment contract will terminate on a specified date may prevent the termination from constituting a dismissal. Where an employment tribunal finds that the agreement was freely negotiated and entered into without duress, the Court of Appeal will not interfere unless an error of law or procedural irregularity is shown. An appeal from an employment tribunal lies only on a question of law, and permission requires a real prospect of success.

The appellant had settled an earlier race discrimination and victimisation claim against his employer. The written settlement provided for compensation, a reference and termination of the employment contract on 31 December 1999. He subsequently brought an unfair dismissal claim, alleging that the settlement had not agreed any future claim and that his employment had been terminated unlawfully.

The Employment Tribunal found that the agreement was voluntary, negotiated in good faith and not procured by duress. It concluded that there had been no dismissal within section 95 of the Employment Rights Act 1996. The Employment Appeal Tribunal dismissed the appeal at a preliminary hearing. The issue before the Court of Appeal was whether the proposed appeal disclosed an arguable error of law or procedural irregularity with a real prospect of success.

1. The application for permission to appeal was refused. The proposed appeal had no real prospect of success.
2. The Court accepted that, if the settlement had merely provided compensation for the discrimination claim, a later termination by the employer might have constituted a dismissal. The agreement contained additional terms, however, including clause 3, under which the parties agreed that the employment contract would terminate on 31 December 1999.
3. The Employment Tribunal had found as facts that the agreement was voluntary, reached without duress, negotiated in good faith and entered into on the appellant’s behalf by counsel with the benefit of legal advice. On those findings, the termination occurred by agreement and was not a dismissal within section 95 of the Employment Rights Act 1996.
4. An appeal from an employment tribunal to the Employment Appeal Tribunal, and subsequently to the Court of Appeal, requires an identifiable error of law or procedural error. There is no appeal on questions of fact. The appellant’s complaints about construction of the agreement, the tribunal’s factual findings, impartiality and procedure did not disclose an arguable error of law.
5. The Court agreed with the reasoning of Mr Commissioner Howell QC in the Employment Appeal Tribunal. A transcript was directed to be supplied to the appellant at public expense.

• Court of Appeal (Civil Division): refused permission to appeal from the Employment Appeal Tribunal’s decision.
• Employment Appeal Tribunal: dismissed the appeal at a preliminary hearing, holding that no arguable point of law was disclosed.
• Employment Tribunal: dismissed the unfair dismissal complaint, finding that the employment ended by voluntary agreement and that there had been no dismissal.