G Cole v Elders' Voice

Without prejudice communications may be admitted where a party challenges a COT3 for misrepresentation, relies on an estoppel arising from the negotiations, or seeks to construe the agreement by reference to the parties’ shared factual matrix. A statutory ACAS-conciliated agreement can be challenged on the same common-law or equitable grounds as another agreement.

An Employment Tribunal must take appropriate care to understand and address submissions made by an unrepresented litigant. It erred by treating the COT3 as conclusive and refusing to examine material capable of supporting properly raised arguments of misrepresentation, estoppel, or construction.

The claimant had brought employment claims initially against Sanctuary Housing Association. Following a TUPE transfer, Elders’ Voice became a respondent. The claimant and Elders’ Voice later signed a COT3 which purported to settle claims against Elders’ Voice.

At a preliminary hearing, the Employment Tribunal held that the COT3 deprived it of jurisdiction. The claimant, acting in person, had sought to rely on without prejudice negotiations to contend that the agreement was affected by misrepresentation or estoppel and did not settle claims relating to her earlier employment. The Tribunal excluded that material and held that it could not go behind the COT3.

The appeal concerned whether the Tribunal could examine the negotiations and whether the COT3’s enforceability and scope required a fresh determination.

1. Appeal allowed. The Employment Tribunal’s decisions that it lacked jurisdiction, and its refusal of reconsideration, rested on an error of law. The Tribunal wrongly treated the COT3 as conclusive and wrongly held that misrepresentation or lack of understanding could not found a challenge to it.

2. The without prejudice rule did not prevent the claimant from relying on the negotiations. Under the exceptions recognised in Unilever and Oceanbulk, such material is admissible in principle to show that an apparent agreement should be set aside for misrepresentation, to establish an estoppel, and as part of the factual matrix for construing an agreement. Those exceptions apply to a COT3 having statutory effect under section 144 of the Equality Act 2010.

3. A COT3 may be challenged on the same common-law and equitable grounds as another agreement. The Tribunal therefore had power to investigate whether it was valid, enforceable, and effective in relation to the claimant’s claims.

4. The claimant’s references to misrepresentation, reliance, estoppel, and the need to examine the negotiations were the bedrock of her case, not passing observations. As an unrepresented litigant without legal qualifications, she was entitled to appropriate assistance to ensure that those submissions were understood and addressed consistently with the Tribunal’s impartial role.

5. The correspondence disclosed arguable issues. Statements that Elders’ Voice had no relevant relationship or connection with Sanctuary, accepted no liability for pre-transfer claims, and was settling claims against Elders’ Voice only could arguably have misled the claimant about the effect of TUPE and the scope of the COT3. Representation by a person holding himself out as a barrister did not, without actual knowledge or absence of reliance, make any actionable misrepresentation irrelevant.

6. The EAT could not determine the disputed factual issues without the parties’ consent. The preliminary issue was remitted for a complete rehearing before a differently constituted Employment Tribunal, which could consider misrepresentation, estoppel, construction, and any other relevant arguments and evidence.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the preliminary issue for a fresh hearing before a different Employment Judge.
• Employment Tribunal: Employment Judge Henry held that the COT3 was valid, that the Tribunal had no jurisdiction over the claims against Elders’ Voice, and dismissed the claim. A request for reconsideration was refused.