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01/05/2012

Brennan & Ors v. Sunderland City Council & Ors : Sunderland City Council v. Brennan & Ors

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Employment Appeal Tribunal

An employment tribunal did not have jurisdiction to determine claims for contribution under the Civil Liability (Contribution) Act 1978 between persons jointly or concurrently liable for damage caused by unlawful discrimination in the employment field. Such claims were only justiciable in the ordinary courts.
 
The Employment Appeal Tribunal had to determine two appeals against decisions of an employment tribunal concerning a contribution claim and an application for disclosure.

The appellant female employees (B) had brought claims for damages alleging that certain terms of a collective agreement between the respondents, namely the local authority and trade unions, were sexually discriminatory. Before the claim was heard, the unions entered into a settlement agreement with B; the claim against the local authority remained unaffected. The local authority stated that it would seek a contribution from the unions pursuant to the Civil Liability (Contribution) Act 1978 in respect of all the sums it might be held liable to pay to B. It also applied for an order under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.1 para.10(2)(d) that B disclose the terms of the settlement. The employment tribunal allowed the local authority's application for disclosure. However, it struck out the contribution claims on the grounds that it did not have jurisdiction to entertain them. In the first appeal, B appealed against the disclosure order. In the second appeal, the local authority appealed against the dismissal of the contribution claims. The EAT had to determine whether (i) on its true construction, the 1978 Act conferred a right to contribution in the case of liability for discrimination in the employment field and if so, whether the employment tribunal itself had jurisdiction to determine such claims or whether they could be brought only in the ordinary courts; (ii) the employment tribunal had been entitled to order disclosure of the settlement agreement.

HELD: (1) It was appropriate to start with the question of jurisdiction. Jurisdiction to consider contribution claims had to derive from the statutes which expressly conferred jurisdiction on the employment tribunal. Although the Sex Discrimination Act 1975 s.63 conferred jurisdiction on the employment tribunal, that provision did not confer jurisdiction to entertain a claim under the 1978 Act. A contribution claim was not a claim "by … [a] complainant" that a respondent had committed an act of discrimination; it was a claim by a respondent that another person had committed such an act. Furthermore, the fact that a tribunal was seised of a primary discrimination claim did not bring with it jurisdiction to entertain contribution claims between respondents. That was contrary to the plain words of the statute and did not account for the fact that contribution claims could be free-standing. Accordingly, the employment tribunal was correct that it had no jurisdiction to entertain the local authority's contribution claim. In any event, the 1978 Act was concerned only with claims justiciable in the ordinary courts. Although the use of the words "court" in s.2(1) and "action" in s.1(6) were not conclusive and it would be possible to construe them expansively to include the employment tribunal, there was nothing in the context to suggest that that was the intention of Parliament. In truth, the legislature had simply failed to consider the question of contribution in the context of liability for unlawful discrimination in the employment field, and since the right to contribution was a creature of statute, the EAT could not repair that omission. Accordingly, the 1978 Act was concerned only with liabilities falling for determination in the High Court or county court and it created no right to contribution in relation to liabilities for discrimination in the employment field (see paras 17-19, 21-22, 24-25 of judgment). (2) The employment tribunal had been entitled to order disclosure. The local authority's point, as accepted by the employment tribunal, was that it was necessary for it to see the terms of the settlement in order to ascertain whether the unions had paid any sum to B by way of compensation which related to the same damage for which they were claiming against the local authority. Although it seemed rather improbable that the unions had in fact paid any sum under the settlement, the possibility that the settlement agreement would contain material relevant to compensation was not so remote as not to call for some response. In the absence of such response, a bare denial of relevance was insufficient. On that basis, the terms of the settlement were relevant to the surviving claim. Furthermore, even if the terms of the settlement were confidential, that was not by itself an answer to a claim for disclosure. Nor was there an evidential basis for the assertion that B's rights under the European Convention on Human Rights 1950 art.8 were engaged; even if they were, a need for the disclosure in question would be a sufficient justification. Finally, B could not rely on the argument that the terms of the settlement were subject to "without prejudice privilege"; that was about the protection of negotiations, not concluded agreements (paras 34, 36, 38-40).

Appeals dismissed.

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