University Of Kent v Fitzgerald

A compromise agreement is construed as a whole, having regard to the nature of the claims compromised and the ordinary and natural meaning of its provisions in context. A clause preserving remedies concerning future non-confirmation of probation may still exclude disability-discrimination claims arising from an employment requirement already included in the contract. The distinction between including a requirement and later operating or invoking it may be over-subtle where the claim arises from the same requirement. A claim need not have been extant at the settlement date to fall within the exclusion. On a renewed permission application, permission should be refused where the proposed appeal has no real prospect of success.

A lecturer brought earlier Employment Tribunal proceedings alleging disability discrimination and breach of contract concerning the University’s requirement that she complete and submit a PhD during an extended probationary period. Those proceedings were compromised by an agreement dated 18 November 1999.

The agreement settled extant claims but preserved remedies concerning future non-confirmation of successful completion of probation, subject to an exclusion for disability-discrimination or breach-of-contract claims arising from inclusion of the PhD requirement in the employment terms. After the lecturer failed to submit her thesis by the due date and her employment was terminated, she brought fresh claims including unfair dismissal and disability discrimination under the Disability Discrimination Act 1995.

The Employment Tribunal held that it had jurisdiction. The Employment Appeal Tribunal reversed that decision. The central issue before the Court of Appeal was whether the EAT had correctly construed the compromise agreement.

1. Outcome. Lord Justice Mummery refused the renewed application for permission to appeal. Lord Justice Dyson agreed. The operative order was that the application was refused.
2. Applicable permission test. The court had to be satisfied that the proposed appeal had a real prospect of success. Any appeal from the Employment Tribunal proceedings was confined to questions of law. The proposed challenge concerned construction of the compromise agreement, but the court found no arguable error of law in the EAT’s approach.
3. Construction of the agreement. The agreement was to be read as a whole. The court had to consider the nature of the claims in the first proceedings and give clause 4 its ordinary and natural meaning in its particular context. No further evidence was available to resolve any suggested ambiguity, and no rectification was sought.
4. Effect of clause 4. The opening part of clause 4 was a comprehensive full and final settlement of all claims extant when the agreement was made, expressly including disability discrimination. The original disability-discrimination complaint included the University’s attempt to include the PhD requirement in the contract.
5. Future claims. Clause 4(b) dealt with future remedies concerning non-confirmation of probation. Its qualifying exclusion for disability-discrimination claims applied where the claim arose from the PhD requirement included in the employment terms. The distinction between inclusion of the requirement and its later operation or invocation was over-subtle and was not supported by the ordinary meaning of the clause in context. The exclusion could therefore cover a claim arising from future non-confirmation even though that claim was not extant when the agreement was made.
6. The Employment Tribunal had therefore erred in finding jurisdiction, while the Employment Appeal Tribunal had correctly allowed the University’s appeal.

• Court of Appeal (Civil Division): On 31 May 2002, the court refused the renewed application for permission to appeal.
• Employment Appeal Tribunal: On 27 February 2002, allowed the University’s appeal and substituted a finding that the Employment Tribunal had no jurisdiction to consider the disability-discrimination claims.
• Employment Tribunal: On 27 September 2001, unanimously held that it had jurisdiction to entertain the lecturer’s complaints.