Background
Mr Edward was dismissed from a band 5 NHS role in 2018. An employment tribunal later upheld his complaint that the failure to redeploy him to a band 4 role, and his resulting dismissal, amounted to victimisation. Following a remedy judgment and an earlier appeal, specified remedy issues—including mitigation of past loss—were remitted to the employment tribunal for rehearing.
In January 2024, the parties submitted proposed consent terms under which the award would be adjusted and the Trust would pay a further £9,660 in full and final settlement of the outstanding claim. Mr Edward initially confirmed his agreement, but before the tribunal made the proposed order he stated that he no longer consented and requested a remedy hearing. Despite that objection, the tribunal later made an order described as being “by consent,” relying on his earlier agreement and the Trust’s subsequent payment of the agreed sum with interest.
The Court’s Holding
The Employment Appeal Tribunal allowed Mr Edward’s appeal and quashed the October 2024 order. Rule 64 of the Employment Tribunals Rules of Procedure 2013, now rule 62 of the 2024 Rules, permits a tribunal to make an agreed order if it thinks fit. The rule covers terms agreed in writing outside a hearing as well as terms agreed orally at a hearing, and the tribunal retains discretion whether to approve them.
The EAT held that a tribunal may make a consent order even where the parties’ underlying full-and-final-settlement provision would itself be unenforceable under section 144 of the Equality Act 2010. But the rule does not authorize an order where, before the tribunal decides the matter, a party has told the tribunal that consent has been withdrawn. Because the tribunal knew Mr Edward opposed the proposed order, it could not properly characterize or impose that order as made “by consent.”
The outstanding remedy issues therefore remain live and must return to the employment tribunal for determination under the earlier remission order. The mitigation issue may be argued afresh, including the significance of Mr Edward’s interview with Public Health England, which the Trust accepted was not an NHS employer. The earlier determination of future loss, however, cannot be reopened.
Key Takeaways
- A written agreement on proposed terms may support a consent order without being reached or repeated at a hearing.
- An otherwise unenforceable statutory-claim settlement provision does not prevent a tribunal from making a consent order while both parties consent.
- A tribunal cannot use the consent-order rule after it knows that one party has withdrawn consent before the order is made.
Why It Matters
The decision distinguishes an unenforceable private compromise from a tribunal order entered with the parties’ current consent. Although judicial approval can conclusively dispose of a statutory employment claim, the consent-order procedure cannot substitute for adjudication once consent has been revoked.
Employment practitioners should ensure that consent remains in place until the tribunal acts. Delay between submission and approval may leave a proposed resolution vulnerable if either party changes position before the order is made.