Zinda v Ark School

An employment tribunal cannot revive or accept a fresh claim covering unfair-dismissal proceedings previously withdrawn pursuant to a valid compromise agreement. A compromise agreement satisfying section 203 of the Employment Rights Act 1996 is not, merely because it was drafted by or on the employer’s standard form, an agreement within Part 1 of the Unfair Contract Terms Act 1977. Section 10 of that Act concerns evasion by means of a secondary contract and does not provide a general jurisdiction to reopen allegedly unfair bargains. A complaint that an agreement is one-sided, or that a contractual promise was later breached, does not establish an arguable error in refusing to revive the tribunal claim.

Mr Zinda’s unfair-dismissal claim against Ark School was settled by a Compromise Agreement and withdrawn. The agreement included a promise concerning detrimental statements, an entire agreement clause and confirmation that he had received advice from a National Union of Teachers representative. After Ark School made a report to the Independent Safeguarding Authority, Mr Zinda brought related proceedings and later presented a fresh Employment Tribunal claim seeking in effect to reopen the settled unfair-dismissal proceedings.

The High Court had previously given summary judgment for Ark School on Mr Zinda’s breach of contract claim. The Employment Tribunal declined to accept the fresh claim, holding that the validity of the Compromise Agreement had already been decided and could not be litigated there. The Employment Appeal Tribunal dismissed his appeal. The central issue was whether the tribunal had jurisdiction to revive or replace the withdrawn claim, particularly by reason of section 10 of the Unfair Contract Terms Act 1977.

1. Disposition. The renewed application for permission to appeal was refused. There was no arguable ground of appeal.
2. Although the appeal was formally from the Employment Appeal Tribunal, the focus was whether the Employment Tribunal’s decision was right or wrong in law. The Employment Tribunal had to decide whether claims previously withdrawn pursuant to the Compromise Agreement could be revived or replaced by a new claim covering the same ground.
3. Section 10 of the Unfair Contract Terms Act 1977 was concerned with evasion by means of a secondary contract. Part 1 was not a general statutory scheme permitting courts to reopen contracts merely because they appeared unfair. It was not reasonably arguable that a compromise agreement drawn up to satisfy section 203 of the Employment Rights Act 1996, and thereby settle an Employment Tribunal claim, fell within Part 1 of the 1977 Act.
4. The Compromise Agreement was therefore valid for the purposes of the Employment Tribunal proceedings. The adviser identified in the agreement, a National Union of Teachers representative, was a permitted type of adviser for the purposes of section 203. The withdrawal of the original claim could not be treated as ineffective. Any challenge to the validity of the agreement could have been raised in the High Court proceedings concerning the agreement, rather than being used to revive the tribunal claim.
5. The alleged one-sidedness of the agreement, the absence of a corresponding employer warranty in the entire agreement clause, and the asserted breach of the promise concerning detrimental statements did not disclose an arguable flaw in the Employment Judge’s decision.

• Court of Appeal (Civil Division): The renewed oral application for permission to appeal was refused.
• Employment Appeal Tribunal: Supperstone J dismissed Mr Zinda’s appeal from the Employment Tribunal.
• Employment Tribunal: Employment Judge Goodman declined to accept the fresh claim, holding that the tribunal had no jurisdiction to reopen matters already decided and settled.
• High Court: Master Eastman gave summary judgment for Ark School on the related breach of contract claim. No appeal was brought from that decision.