Clyde & Co LLP & Anor v Winkelhof

A contractual dispute-resolution clause cannot be enforced to halt or preclude Employment Tribunal proceedings concerning statutory discrimination or whistleblowing rights where the clause permits final arbitration outside the statutory exceptions. The protection against contracting out extends to agreements that delay or limit continuation of proceedings. The High Court also has no jurisdiction to compel a party to seek a stay in separate Employment Tribunal proceedings.

The defendant, a solicitor and former member of a limited liability partnership, brought Employment Tribunal claims alleging sex and pregnancy discrimination and detriment for making protected disclosures. The claimants relied on a members’ agreement requiring management consideration, ADR and, at a party’s option, final arbitration. They sought a mandatory injunction requiring the defendant to apply for or consent to a stay of the Tribunal proceedings.

The issues were whether the agreement was enforceable under the Equality Act 2010 and Employment Rights Act 1996, whether the High Court could procure a stay in separate Tribunal proceedings, and whether such relief should be granted discretionarily.

1. Claim and application dismissed. The members’ agreement applied to an outgoing member and was broad enough to include statutory rights. Its procedure was mandatory and ultimately permitted either party to require final arbitration.
2. The arbitration provision would finally determine the defendant’s complaints, subject only to an appeal or reference on a question of law. It therefore precluded continuation of the whistleblowing proceedings. The arbitration was not within the statutory exception in section 203(5) of the Employment Rights Act 1996 and was void under section 203.
3. Section 144(1) of the Equality Act 2010 also renders unenforceable an agreement that precludes or limits continuation of sex-discrimination proceedings before an Employment Tribunal, unless it falls within section 144(4). Arbitration is enforceable only where section 144(6) applies.
4. Even enforcing only the ADR stage would halt the Tribunal proceedings during the resulting delay. Such an agreement would also be unenforceable under section 203 unless within the conciliation exception.
5. The High Court could not obtain the requested result indirectly. The Tribunal controlled its own proceedings and the claimants had not used the available procedural route for seeking a stay. Chorion Plc and others v David Lane was materially distinguishable because it involved overlapping High Court and Tribunal proceedings and a risk of inconsistent findings.
6. In any event, the injunction would have been refused in the exercise of discretion because no good reason had been shown for bypassing the Tribunal.

First-instance decision. No prior or appellate decision is stated in the judgment.