(1) A litigant in person who had argued that a COT3 could not be relied upon because of misrepresentation and estoppel (and possibly also by way of interpretative construction) should have been allowed to refer to without prejudice material in support of those submissions.
Oceanbulk Shipping and Trading SA v TMT Asia Ltd [2010] UKSC 44 [2011] 1 AC 662 and Unilever plc v The Procter and Gamble Co [2000] 1 WLR 2436 applied.
(2) A COT3 can be challenged on the same basis as any other agreement in common law or equity.
Industrious Ltd v Horizon Recruitment Ltd [2010] IRLR 204 and Greenfield v Robinson [1996] EAT/811/95 applied.
Patel v City of Wolverhampton College [2020] UKEAT/0013/20/RN, [2020] UKEAT 0013 – 20 – 1906 held to be per incuriam and not followed.
(3) ET decisions on a Preliminary Issue that there was no jurisdiction to hear the Claimant’s substantive claims were based on errors of law. It was wrong to find that the Claimant could not go behind the COT3 or rely on without prejudice or other evidence to show that it was not valid.
(4) As the Claimant was a litigant in person with no legal qualifications, particular care had to be taken to make sure that what she was saying was heard and understood and acted upon. Mensah v East Herefordshire NHS Trust [1998] IRLR 531 and Drysdale v Department of Transport [2014] EWCA Civ 1083 [2014] IRLR 892 applied.
(5) The Claimant’s submission that the COT3 should be set aside, or not enforced, by reason of misrepresentation, or that the Respondents were estopped from relying on it, or that it should be construed to exclude settlement of claims arising before the TUPE transfer, was not precluded by the involvement of a person holding himself out as a barrister (although disbarred) on her behalf.
Redgrave v Hurd (1881) 20 Ch D 1 and Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd [2006] EWCA Civ 386 considered.
(6) Case remitted to a differently constituted ET.
Judges:
Mr Justice Griffiths
Citations:
[2020] UKEAT 0251 – 19 – 2611
Links:
Jurisdiction:
England and Wales
Employment
Updated: 18 November 2022; Ref: scu.661661
