In person For the v Ms E Wilkinson (solicitor) — 2021

The claimant presented his ET1 on 19 November 2019, ticking redundancy payment and notice pay. He said he had not been given enough money when he entered into a settlement agreement that ended his employment in July 2017, and that he was not in a fit mental state to sign it because of alcohol dependency and mental instability. The respondent said he had not been made redundant, had not been dismissed, was bound by the settlement agreement, and that the claims were out of time and had no reasonable prospects.

At the hearing the claimant accepted that he did not wish to bring a redundancy payment claim and that he had not been made redundant, so that claim was withdrawn. The tribunal found that his employment had ended by agreement on 28 July 2017 under a settlement agreement dated 1 August 2017, entered into after concerns about capability and conduct. He had received independent legal advice paid for by the respondent, and the agreement provided various taxable sums plus an ex gratia payment of £21,000, including £12,500 in lieu of notice, with a full and final settlement clause covering claims including wrongful dismissal, unfair dismissal, breach of contract, discrimination and harassment.

On the notice pay claim, which the tribunal treated as a wrongful dismissal claim, the claimant accepted that he had received more than his notice entitlement but said the sum was still insufficient. The tribunal held that he was bound by a valid settlement agreement and therefore could not pursue the claim. Applying s.2(1) of the Mental Capacity Act 2005 and the approach in Masterman-Lister v Brutton & Co, the judge noted the presumption of capacity and found that the claimant had produced no evidence to support the assertion that he lacked capacity when signing the agreement.

The tribunal also held that the wrongful dismissal claim was out of time under the Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994, art 7(a), and that there was no basis to extend time under art 7(c). The claim was brought about 2.5 years after termination, the claimant had not proved that his health prevented a timely claim, and although he contacted ACAS in July 2019 he did not present the ET1 until November 2019 without explanation. In any event, the judge found the claim had no reasonable prospects because the ex gratia payment expressly included £12,500 in lieu of notice pay. The claimant also sought to amend to add unfair dismissal at the hearing, but that application was not determined and no monetary award was made.