J Edward v North London NHS Foundation Trust

Rule 64 permits an employment tribunal to make a consent order on terms agreed in writing at any time during a claim, or orally at a hearing. An unenforceable full and final settlement term under section 144 of the Equality Act 2010 does not itself prevent the tribunal making such an order. But the power requires that, when the order is made, both parties still want the tribunal to make it. Earlier consent that has been withdrawn cannot authorise an order disposing of a live complaint, and the tribunal has no general power to replace adjudication with an order based on terms a party no longer accepts.

The claimant, an employee of the respondent’s predecessor trust, succeeded in a victimisation complaint concerning his dismissal. An earlier appeal remitted the past-loss mitigation issue for a further remedy hearing. Before that hearing, the parties exchanged proposed settlement terms and the claimant initially agreed that the tribunal could make an order by consent. He later told the tribunal that he no longer consented and sought a remedy hearing. The Employment Tribunal nevertheless made an order in October 2024 varying the award and ending the proceedings.

The respondent accepted that the settlement terms did not constitute an enforceable settlement agreement and that the claimant had withdrawn his consent before the order was made. The central issue was whether rule 64 of the Employment Tribunals Rules of Procedure 2013 nevertheless empowered the tribunal to make the order.

1. The appeal was allowed. The Employment Appeal Tribunal quashed the Employment Tribunal’s order of 2 October 2024. The remitted remedy issues were to return to the tribunal for determination in accordance with the earlier remission.
2. Rule 64 of the Employment Tribunals Rules of Procedure 2013 applies to proposed terms agreed in writing at any time during the claim, or agreed orally at a hearing. The 2013 wording added the oral-at-a-hearing option to the earlier rules, which permitted written agreement without requiring a hearing.
3. The fact that a full and final settlement term is unenforceable under section 144 of the Equality Act 2010 does not prevent the tribunal from making a consent order under rule 64. The tribunal’s order is its own decision, and the rule gives it a discretion whether to make the order. The EAT considered Carter v Reiner Moritz Ltd [1997] ICR 882 and Mayo-Deman v University of Greenwich [2005] IRLR 845 inconclusive on whether that proposition formed part of their ratio. It regarded Times Newspapers Limited v Fitt [1981] ICR 637 as supporting the tribunal’s power, while noting that the relevant passage might be obiter.
4. That power does not extend to an order where, before it is made, a party has told the tribunal that they no longer consent and do not want the order. Rule 64’s requirement that an order be identified as made by consent is inconsistent with making one in those circumstances. A tribunal has no general power to dispose of a live complaint in the interests of justice merely because a party previously agreed to settle. The available routes are an enforceable settlement, withdrawal under rule 50, or a consent order made while both parties want it.
5. The revocation of the earlier dismissal upon withdrawal restored the position as if that dismissal had not been made. It did not prevent a later consent order if both parties still agreed, but the claimant did not. The EAT declined to reopen the earlier determination of future loss; the remitted mitigation issue could be argued afresh. The remedy matters were remitted in accordance with the prior EAT order.

1. Employment Appeal Tribunal: In this appeal, the EAT allowed the appeal, quashed the Employment Tribunal’s October 2024 order and returned the remitted remedy matters to the tribunal.
2. Employment Tribunal: On 2 October 2024, the tribunal varied the remedy award and treated the proceedings as resolved by consent. That order was quashed in the present appeal.
3. Employment Appeal Tribunal: In an earlier appeal, judgment sealed on 6 May 2023, the EAT allowed the appeal on past-loss mitigation and remitted that issue. Other discrete remedy issues and the cross-appeal were resolved in part by consent; the appeal concerning future loss was dismissed.
4. Employment Tribunal: The tribunal upheld the claimant’s victimisation complaint concerning failure to redeploy him and dismissed his other complaints. It later made a remedy award, including past-loss mitigation and future-loss findings.