Brennan v Sunderland City Council (No 2) (Sunderland City Council v Brennan)

An employment tribunal’s jurisdiction to hear discrimination complaints does not extend to contribution claims between respondents. Such claims are free-standing and require an express statutory jurisdictional foundation. The Civil Liability (Contribution) Act 1978 does not itself confer tribunal jurisdiction and, on its proper construction, does not create a contribution right for employment discrimination liabilities.

A settlement with one alleged joint tortfeasor is not automatically disclosable in proceedings against another. Disclosure may be ordered where the terms may show payment for the same loss, since that recovery must be taken into account. Confidentiality and article 8 do not prevent necessary disclosure, and completed settlement agreements are not protected by without prejudice privilege.

The Claimants brought equal pay and sex discrimination claims against Sunderland City Council and the GMB and UNISON concerning provisions in a single-status collective agreement. The claims against the unions were largely settled.

The Council served contribution notices under the Civil Liability (Contribution) Act 1978. The unions applied to strike them out. The Council separately sought disclosure of the settlement agreements. On 31 March 2011, the Employment Tribunal struck out the contribution claims and ordered disclosure. The appeals concerned whether the tribunal had jurisdiction over contribution claims and whether the settlement terms were relevant and disclosable.

1. Contribution jurisdiction. Both appeals were dismissed. The jurisdiction of an employment tribunal had to derive from the statutory provisions conferring it. Section 63 of the Sex Discrimination Act 1975 permitted a complaint by a complainant that a respondent had committed unlawful discrimination. A contribution claim was instead brought by one respondent against another. It was free-standing, rather than merely ancillary to the primary discrimination claim. The fact that both alleged wrongdoers were already parties did not enlarge the tribunal’s jurisdiction. The absence of provisions dealing with joinder and limitation also supported that conclusion.
2. Scope of the contribution legislation. Although unnecessary to dispose of the appeal, the Tribunal expressed the view that the Civil Liability (Contribution) Act 1978 did not create a right to contribution for employment discrimination liabilities. The references to liability established in an action and contribution assessed by the court naturally referred to ordinary court proceedings. The legislative history, deriving from the Law Reform (Married Women and Tortfeasors) Act 1935, supported that construction. Any perceived omission was for Parliament to remedy.
3. Disclosure. Settlement with one alleged joint tortfeasor did not automatically make the settlement terms disclosable in a claim against another. A specific basis of relevance was required. The terms might show that compensation for the same loss had been paid under the settlement. Any such recovery would have to be taken into account in assessing compensation against the Council. Given the Claimants’ refusal to give a categorical answer and the possibility that the agreements contained relevant material, the disclosure order was justified.
4. Confidentiality and privilege. Confidentiality alone did not answer an application for disclosure. A demonstrated high degree of confidentiality might justify restrictions or redaction. Article 8 of the European Convention on Human Rights did not prevent disclosure justified by ordinary civil litigation requirements. Without prejudice privilege protected negotiations and concessions made during settlement negotiations, not concluded settlement agreements.

1. Employment Appeal Tribunal. Dismissed both appeals.
2. Employment Tribunal. On 31 March 2011, struck out the Council’s contribution claims and ordered the Claimants to disclose the settlement agreements with GMB and UNISON.