Claimant v Respondent — 2018

The tribunal was asked to decide whether the claimant could set aside the compromise agreement reached on 19 December 2017 on the ground that she lacked capacity when she entered into it. It found that the agreement itself was short and clear, provided for consensual termination on 31 December 2017 and an ex gratia payment, and stated that it was in full and final settlement of the Equality Act claim and the internal grievance. The tribunal also noted an omitted Serco car lease debt, but found that this was an oversight and did not assist the capacity issue.

The tribunal approached capacity by focusing on the specific transaction, not the claimant’s wider mental health history, and by looking at the negotiation period in late 2017. It cited City of Glasgow v Dahhan and Dunhill v Burgin, and said the question was whether the claimant understood sufficiently the nature and effect of negotiating and agreeing the severance through ACAS. It gave greatest weight to contemporaneous written material from the claimant, ACAS, the respondent, GP records, occupational health, her social worker and the psychiatrist.

On that material, the tribunal found no contemporaneous indication that the claimant did not understand the negotiations or the agreement, and no record that anyone who dealt with her perceived a problem of understanding or rationality. It rejected the suggestion that her correspondence showed impulsiveness or lack of clarity, found that her request for a face-to-face meeting did not show incapacity because there was ample time before signature, and gave limited weight to the social worker’s risk assessment as evidence on the capacity question. It accepted that the claimant had been unwell, but held that she fell far short of proving lack of capacity to enter into the compromise agreement.

The application to set aside the agreement was therefore refused. Because the underlying claims related only to events before termination and had been compromised, the tribunal struck out the proceedings. It added that, if it had found otherwise, it would have listed a further preliminary hearing on limitation, and noted that the complaint was said to concern discrimination before 1 January 2018 and was presented more than 13 months out of time.