Sunderland City Council v Brennan & Ors (Practice and Procedure : Contribution)

An employment tribunal’s jurisdiction is statutory. Its jurisdiction to determine a discrimination complaint does not carry an implied jurisdiction to determine a contribution claim between respondents under the Civil Liability (Contribution) Act 1978.

Further, the 1978 Act, properly construed, creates no contribution right in respect of employment-discrimination liabilities. Its references to an action and to assessment by a court concern liabilities justiciable in the ordinary courts.

A settlement agreement with one alleged discriminator may be relevant in proceedings against another where it may reveal compensation for the same loss, since any such recovery must reduce a later compensatory award. Confidentiality alone does not prevent disclosure. Without prejudice privilege protects negotiations, not a concluded settlement agreement.

The claimants brought equal pay and sex-discrimination claims against Sunderland City Council and two recognised trade unions. They alleged that terms of a collective single-status agreement were discriminatory. The claimants later settled their financial claims against the unions, while continuing claims against the Council.

The Council served notices seeking a contribution from the unions under the Civil Liability (Contribution) Act 1978. The unions applied to strike out those claims. The Council also sought disclosure of the settlement agreements. An employment tribunal struck out the contribution claims and ordered disclosure of the agreements.

The Council appealed the contribution ruling. The claimants appealed the disclosure order. The central issues were whether the tribunal, and the 1978 Act, permitted contribution between alleged joint or concurrent discriminators, and whether the settlement agreements were relevant and protected from disclosure.

1. Both appeals were dismissed. The employment tribunal correctly struck out the Council’s contribution claims. Section 63(1) of the Sex Discrimination Act 1975 gives a tribunal jurisdiction over a complaint by a complainant that a respondent committed unlawful discrimination. A contribution claim is instead a claim by one respondent against another. It is a free-standing statutory claim, even though it depends on a primary liability, and requires an express jurisdictional grant.

2. The tribunal’s jurisdiction over the primary discrimination claims did not imply a power to determine contribution between respondents. Such an implication would be inconsistent with the statutory language and would create an anomalous distinction between contribution claims against existing parties and claims against persons whom the claimant had not joined. The absence of provisions for joinder and limitation reinforced that conclusion.

3. The Tribunal also expressed its view that the Civil Liability (Contribution) Act 1978 creates no contribution right for liabilities arising from employment discrimination. The statutory references to liability capable of being established in an action and to assessment by a court naturally concern ordinary court proceedings. The legislative history did not support an expanded construction. Any contribution regime for joint or concurrent employment discriminators must therefore be created by Parliament.

4. The disclosure order was justified. A settlement with one alleged discriminator does not automatically make its terms disclosable in related proceedings against another. Here, however, the agreements could reveal compensation paid for the same damage. Any such sum would reduce compensation recoverable from the Council. The claimants’ refusal to state that no such payment had been made meant that a bare denial of relevance was insufficient.

5. Confidentiality did not itself defeat disclosure. The claimants had not established a sufficiently particular confidentiality case. Nor did article 8 assist. Finally, a concluded settlement agreement does not attract without prejudice privilege merely because it records concessions reached in negotiations. That privilege protects negotiations, not the agreement itself.

• Employment Appeal Tribunal: both appeals were dismissed. The tribunal’s orders striking out the Council’s contribution claims and requiring disclosure of the settlement agreements were upheld.
• Employment Tribunal: by orders and judgments sent on 31 March 2011, the tribunal allowed the unions’ strike-out applications and allowed the Council’s disclosure application.