Zinda v Ark Schools

A compromise agreement does not prevent an employer from making safeguarding disclosures required by law. A contractual term which purported to prohibit such disclosures would be contrary to public policy and void.

An Employment Tribunal may determine whether a compromise agreement is unenforceable for misrepresentation despite compliance with statutory settlement requirements. However, a party cannot relitigate an implied contractual term already determined by the High Court. A signed warranty that independent advice was received, coupled with an opportunity to read the agreement, defeated a challenge under section 203 of the Employment Rights Act 1996. The statutory advice requirement concerns the terms and effect of the agreement, rather than whether it is a favourable bargain.

The appellant, a teacher dismissed for gross misconduct, settled existing Employment Tribunal proceedings under a February 2009 compromise agreement. Clause 5(a) prohibited detrimental remarks by the employer, and clause 12.1 recorded the appellant's warranty that he had received independent advice.

After the employer reported the dismissal to the Independent Safeguarding Authority, the appellant sought to reopen his claims. He alleged that the agreement was void for misrepresentation and that it failed to meet the requirements of section 203 of the Employment Rights Act 1996. The Central London Employment Tribunal held that it had no power to consider the claim. The appeal concerned whether the reporting obligation and the advice given invalidated the compromise agreement.

1. Appeal dismissed. The Employment Tribunal had no power to consider the appellant's claim because the compromise agreement was valid.
2. An Employment Tribunal has jurisdiction to determine whether an agreement complying with section 203(3) is nevertheless unenforceable for misrepresentation. That proposition did not assist the appellant. The report to the safeguarding regulator could not found a case that the agreement was void for misrepresentation.
3. The High Court had already determined that the agreement contained an implied term permitting disclosures to the relevant authorities where required by law. That issue could not be relitigated in the Employment Tribunal. Independently, a term prohibiting safeguarding disclosures would be contrary to public policy and void.
4. Section 35 of the Safeguarding Vulnerable Groups Act 2006 required a regulated activity provider, within section 6, to report to the Independent Safeguarding Authority where it considered that a teacher might harm a child or put a child at risk. The relevant issue was the employer's view of the circumstances when it made the report, not the authority's later conclusion that the statutory criteria were not met.
5. The appellant's challenge concerning advice failed. Clause 12.1 of the signed final agreement warranted that he had received advice on its terms and effect. He had an opportunity to read it before signing. A complaint about the quality of his adviser's advice did not invalidate the agreement; the statutory requirement does not require advice on whether the bargain should be accepted.

• Employment Appeal Tribunal: appeal dismissed; the Central London Employment Tribunal's conclusion that it had no power to consider the claim was upheld.
• Central London Employment Tribunal: Employment Judge Goodman rejected the claim by a decision sent to the parties on 15 July 2013.