National Centre for Young People With Epilepsy v Boateng

A tribunal considering whether to strike out proceedings because of a compromise agreement must first determine whether the agreement is valid and enforceable. A witness order may be made only where the proposed witness can give evidence that is prima facie relevant and admissible, and attendance is necessary because the witness will not attend voluntarily. Legal professional privilege may be waived where a claimant relies on alleged failures by the solicitor who advised on the agreement to establish that it is ineffective. Applying the fairness principle, the opposing party should then have the opportunity to obtain that solicitor’s evidence.

The claimant brought race and age discrimination claims against her former employer. Following mediation, she signed a compromise agreement purporting to settle the claims and terminate her employment. She later challenged its validity, alleging that her former solicitor had not acted independently or advised her properly.

The Employment Tribunal refused the employer’s applications for a witness order requiring the solicitor to attend the pre-hearing review on the compromise agreement. The employer appealed to the Employment Appeal Tribunal. The central issues were whether the solicitor’s evidence was relevant and admissible, whether privilege had been waived, and whether attendance was necessary.

1. Appeal allowed. The Employment Tribunal’s orders were set aside, and the Tribunal was directed to issue a witness order requiring the claimant’s former solicitor, Mr Fletcher, to attend the pre-hearing review.
2. A compromise agreement which requires withdrawal of an Employment Tribunal claim prevents the claim proceeding only if the agreement is valid and enforceable. Where validity is challenged, the Tribunal must determine that issue before striking out the claim. If the agreement is valid, strike-out may be appropriate under rule 18(7) of the Employment Tribunal Rules.
3. The test for a witness order is that the proposed witness must be able to give prima facie relevant evidence and an order must be necessary because the witness will not attend voluntarily, following Dada v Metal Box [1974] ICR 559. The evidence must also be admissible. Evidence protected by legal professional privilege should not be compelled unless privilege has been waived.
4. The claimant’s case depended on alleged failures by Mr Fletcher to act independently and advise her on the terms and effect of the compromise agreement. Those allegations made his evidence plainly relevant to validity and enforceability. The claimant had therefore, prima facie, waived privilege in the relevant communications.
5. The governing principle was fairness between the parties, as explained in Brennan v Sunderland City Council [2009] ICR 479. It would be manifestly unfair to prevent the employer from presenting the solicitor’s evidence when the claimant relied on the alleged professional failures to avoid the agreement. The Tribunal, as fact-finder, would decide which account to accept.
6. An appeal against an interlocutory Employment Tribunal decision is not a rehearing. The EAT’s jurisdiction is confined to correcting errors of law, ordinarily including a decision that is Wednesbury unreasonable, as explained in Noorani v Merseyside TEC Limited [1999] IRLR 184. The judge’s unexplained conclusion that the solicitor’s attendance was unnecessary and inappropriate could not stand.

The judge invited Mr Fletcher to provide a summary of his evidence voluntarily, but declined to compel one under rule 10.

• Employment Appeal Tribunal: Allowed the employer’s appeal against the Employment Tribunal’s interlocutory refusals dated 8 and 17 September 2010. The orders were set aside and a witness order was directed.
• Employment Tribunal: Refused applications for witness orders concerning the claimant’s former solicitor and mediator in connection with a proposed pre-hearing review of the compromise agreement.