Hinton v University of East London

A compromise agreement may cover an anticipated employment tribunal claim raised between the parties, even before proceedings are issued. However, a general waiver of all statutory claims does not satisfy the requirement that the agreement must relate to the particular proceedings. The claim must be clearly identified by a generic description or by reference to the statutory provision giving rise to it. A brief factual and legal description is good practice, although not always essential. A clause covering all statutory claims therefore did not validly compromise an unmentioned public interest disclosure claim.

Dr David Hinton took early retirement from the University of East London under a written agreement dated 21 July 2003. The agreement purported to settle all claims arising from his employment and listed particular claims, but it did not mention complaints under section 47B of the Employment Rights Act 1996 concerning detriments allegedly suffered after protected public interest disclosures.

The employment tribunal held that the agreement did not prevent the complaint. The Employment Appeal Tribunal, in UKEAT/0495/04/LA, reversed that decision, concluding that the claim fell within the agreement’s general wording and need not be specifically identified. The issue on appeal was whether the agreement related to the particular proceedings for the purposes of section 203(3)(b) of the 1996 Act.

1. Appeal allowed. The Employment Appeal Tribunal should have dismissed the University’s appeal. The matter was to proceed to a full merits hearing, subject to further case-management decisions.

2. Ordinary principles of contractual interpretation determine whether a compromise agreement covers a particular claim. The agreement must first be construed to decide whether it contractually precludes the claim. The statutory safeguards then determine whether the compromise-agreement exception to the general rule against contracting out applies.

3. Section 203 of the Employment Rights Act 1996 protects employees from relinquishing tribunal rights without adequate identification and understanding of the claims concerned. A compromise may concern anticipated proceedings where the underlying claim was raised before the agreement, and one agreement may cover several proceedings. The agreement must nevertheless relate to the particular proceedings, rather than merely to statutory claims generally.

4. The particular claim must be clearly identified by a generic description or by reference to the statutory section creating it. A rolled-up reference to all statutory rights, or a reference only to the 1996 Act, is insufficient where that Act creates many different rights. A brief factual and legal description of the allegations and their statutory or common-law basis is good practice. The agreement here was contractually wide enough to cover the section 47B claim, but failed the statutory particularity requirement because it did not identify public interest disclosure detriment, section 47B, or the factual basis of the complaint.

5. Lunt v Merseyside TEC Ltd, [1999] IRLR 458, was helpful concerning anticipated claims and the use of one agreement for multiple claims, but it was not authority on the particular-proceedings issue. The broader reading adopted below was rejected. The other cited authorities did not alter that conclusion.

• Court of Appeal (Civil Division): [2005] EWCA Civ 532. Dr Hinton’s appeal was allowed and the Employment Appeal Tribunal’s decision was reversed.
• Employment Appeal Tribunal: UKEAT/0495/04/LA. The University’s appeal was allowed.
• Employment Tribunal: held that the compromise agreement did not preclude the section 47B complaint.