EAT confirms a tribunal cannot make a consent order after a party withdraws their consent before the order is made

Background

In Edward v North London NHS Foundation Trust, the claimant was dismissed and brought a successful victimisation claim. Following a successful appeal, some issues in the litigation were remitted for hearing.

Before the remitted hearing took place, the parties agreed terms for a consent order providing for an increased award and an additional payment in full and final settlement of the claim. The draft order also provided for the remedy hearing to be vacated. The claimant confirmed by email to the tribunal that he agreed to settle on those terms.

The hearing was vacated but through human error, the consent order was never made. A legal officer then signed a judgment dismissing the claim on withdrawal.

The claimant then informed the respondent and the tribunal that he no longer agreed to settlement on those terms and would pursue a remedy hearing. The respondent applied for a consent order to be made on the original terms.

The employment judge revoked the erroneous dismissal but at a later hearing made an order reflecting the original terms and expressed as being by consent. The claimant appealed.

EAT decision

The EAT allowed the appeal and quashed the consent order.

The central issue was whether the tribunal could make an order where both parties had previously agreed the terms, but one party had withdrawn consent before the order was made. The EAT held that it could not.

The natural meaning of a consent order is that both parties consent to the tribunal making the order when it is made. Historical consent does not provide the tribunal with a continuing power to impose the agreed terms after consent has been withdrawn. This was particularly clear because the tribunal knew that the claimant no longer consented.

Discrimination claims cannot generally be settled simply by an ordinary agreement between the parties. To be enforceable, the settlement must meet specific statutory requirements, for example by being recorded in a compliant settlement agreement or reached through Acas. The agreement in this case did not meet those requirements and so could not, by itself, prevent the claimant from pursuing his claim. However, the EAT held that this did not prevent the Tribunal from making a consent order giving effect to terms the parties had agreed: that is a separate route to resolving proceedings, involving a decision by the Tribunal itself, which has discretion over whether to make the order.

Learning points for employers

This decision highlights that the consent order mechanism carries an inherent vulnerability. Consent may be withdrawn at any time before the tribunal acts, even where written agreement was previously provided. Administrative delays in tribunal processing can create the window for this to happen.

Parties should not assume that submitting an agreed draft consent order gives immediate finality. Consent can be withdrawn before the tribunal makes the order.

Where settlement is intended to provide binding finality, parties should use a settlement agreement or COT3 to record the full and final terms of the agreement.

For more information or advice, please get in touch with Eleanor Searle in our Employment team.