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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Byrnell v British Telecommunications & Anor [2009] EWHC 727 (QB) (20 February 2009) URL: https://www.bailii.org/ew/cases/EWHC/QB/2009/727.html Cite as: [2009] EWHC 727 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
CHARLES BYRNELL |
Appellant |
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- and - |
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(1) BRITISH TELECOMMUNICATIONS (2) MR STANBURY |
Respondents |
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101 Finsbury Pavement London EC2A 1ER
Tel No: 020 7422 6131 Fax No: 020 7422 6134
Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com
(Official Shorthand Writers to the Court)
MR D MITCHELL appeared on behalf of the 1st Respondent
MR P MITCHELL appeared on behalf of the 2nd Respondent
____________________
Crown Copyright ©
JUDGE REID:
"In terms of a reference Charles, the reference which we'd [put with] the package would say: we can agree a reference with you, but certainly it would not be in any way detrimental to you, it would be stating you were in our continuous employment through the period working on major projects, and there would be no reason for us to give a reference to any employer which stated how much time you had spent AFA (available for assignment) [sometimes referred to in this industry, I gather, as being on the bench]. We'd just say that these are the skills you developed with us and these are the types of projects you had worked on, and that you were continuously employed and took a voluntary leaver's package. We certainly would not want to inhibit you in any way in your onward [further?] employment."
Then later on, he said:
"We are not expecting you to give us an immediate answer, you know, do…. take this information along, think about it, discuss it with friends and family,..."
"Charles has worked to a fully satisfactory standard throughout his time with BT plc and Syntegra Limited and left the company voluntarily for personal reasons. His health was at all times good. His job title was Technical Designer and Design Authority whilst he was with Syntegra. He worked on a number of projects including Sunrise, Telfort, Barclays and CCS-UK. His final salary was £33,500, plus a 9% bonus in lieu of overtime."
"Charles,
It is Syntegra's policy in all circumstances to supply a reference that is factual only and makes no comment on performance. I am sending you in a separate email a copy of this model reference for your information. If you were to indicate to me today that you are prepared to sign the compromise agreement then I would be prepared to add to the reference a statement indicating you left voluntarily for personal reasons. I note your request for a further PPR."
"Dear Name,
REFERENCE REQUEST Name,
Thank you for your recent letter regarding the above named. The information I can provide is as follows.
Name was employed by Syntegra from Date to Date as a Dev. Stage within the Name skill group. His/er employment was both permanent and full-time. It is not the policy of Syntegra to comment on an individual's suitability to undertake a new position.
Yours sincerely..."
Then provision for a signature by somebody in the HR administration.
"Nigel,
I find this 'reference' totally unsatisfactory. Whatever this letter is supposed to communicate, it is plainly not a reference, for the ambit of the letter is simply to refuse to give any reference at all. The information you choose to supply is in any case in the public domain and held externally to Syntegra. Any employer would already have access to that information. A refusal to give any reference is always taken as an unsatisfactory reference and is in itself wholly prejudicial. I remind you that you agreed to supply a 'non-prejudicial' reference as part of any bargain.
"The issue I have is that the documents show that my performance never fell below 'fully satisfactory' and you are refusing to communicate that fact. That is clearly prejudicial.
"I therefore propose a further statement: 'Our documented records do not indicate any disciplinary or other issues with performance with this employee.'"
"At the brief initial meeting Mr Byrnell indicated he was concerned about the reference being offered to him. BT had indicated they would only supply a proforma reference with no comments on his performance. He drew my attention to the draft reference offered and the paragraph in the agreement whereby the employer agreed to provide a non-prejudicial reference on request. I mentioned to him the possibility of negotiating with BT a reference which could then be annexed to the agreement."
"Charles,
I have just finished a meeting so have only now read your email below. I do not think that you will find that Syntegra policy is wholly consistent with that adopted by most companies in light of case law that holds them liable for statements made by ex-employees. Neither we, nor do we believe do other employers, take a reference in the nature proposed to be anything other than standard practice and do not put any negative connotations on it. Your ex-colleagues and their solicitors seem to be in agreement and to have accepted references of this nature to be appropriate and non-prejudicial."
"5. At the meeting I expressed the view that Mr Byrnell was unlikely to be able to negotiate the wording of a full reference. He accepted my advice to sign the agreement as it was offered to him. I advised that as the agreement did not contain any mention of the reference offered, this would enable him to raise this as an issue with BT as a later stage if this became necessary. However, Mr Byrnell signed the agreement, knowing the terms of the only reference BT were prepared to offer him.
6. The Agreement had to be concluded that day otherwise the enhancement offered would be withdrawn. Mr Byrnell accepted my advice. We went through the remainder of the agreement. I was with him for about an hour. I suggested a minor amendment to the agreement to record the agreed holiday entitlement.
7. Mr Byrnell then left to return to his employer's offices, which are only about one and a half miles from my office. He returned a short time letter with a fair copy of the agreement, which he signed in my presence and I countersigned, and he took it away with him to deliver to BT before close of business that day."
The claimant told me in the course of this hearing that he delivered that shortly before 5 o'clock.
"(d) You agree [that is the claimant agrees] that you will not at any time:-
(i) Make any statement in relation to the organisation or its business or any of the employees thereof which is intended to or likely to have the effect of damaging or lowering their reputation;
(ii) Wrongfully represent yourself as being employed by the Company or conduct yourself in any way in a manner inconsistent with having surrendered your position with Syntegra.
As an organisation, we commit to not making any prejudicial remarks, as evidenced by provision of a non-prejudicial reference on request."
"You are of course free to approach any member of Syntegra staff with whom you have previously worked and request they provide you with a personal reference. This would be able to address subjective matters such as an assessment of competence and honesty.
I trust this now draws this matter to a close and wish you well in your continuing search for employment."
The information I can provide is as follows:
Charles Byrnell was employed by Syntegra from 16th March 1992 to 31st December 2002 as a Design Authority within the Design Skill Group. This employment was both permanent and full-time. It is not the policy of Syntegra to comment on an individual's suitability to undertake a new position."
Signed by Mr Clemson. It was, therefore, entirely in line with what had been indicated as being the reference that he would provide.
"The applicant was not dismissed from our employment. He, along with a substantial number of other employees, was invited to participate in a targeted voluntary leavers programme. Under the terms of this programme the applicant was given the opportunity to take an enhanced termination package on a voluntary basis or to register with the BT redeployment service and seek redeployment into another part of the BT Group. The applicant chose to participate in the programme and opted to take the termination package. This gave him a payment of £37,345.31, equivalent to more than 13 months gross salary. The applicant freely entered into a compromise agreement dated 11th January 2002 that complied with the statutory provisions regulating such agreements under section 203 of the Employment Rights Act 1996." [quotation unchecked]
Then went on to deal with other matters.
"Compromise clause could be relied on, it did not comply with section 203."
But the substance of the judgment was that the issues had already been raised:
"We agreed with the tribunal's view, "concluded the appeal tribunal" that the Agreement therefore did relate to complaints which had clearly already arisen in the contemplation of the appellant and thus the compromise agreement contained in clause 4 related to those claims. For these reasons this appeal is therefore dismissed."
"I have already said what I think is the proper meaning of the words in question in context. All it is necessary to say in this case is that although the complaint was not one which had been raised in correspondence by Mr Byrnell, it was clearly one which was, to use his words, 'in the air' at the time this compromise agreement was made. So this was not a case in which these complaints had not yet arisen and might only arise on the off-chance. So Lunt does not persuade me that the tribunal in this case got the matter wrong."
"I agree. No question of law arises from the decision of the Employment Tribunal in this case. The Employment Tribunal correctly interpreted and applied section 203(3)(b) of the Employment Rights Act to the facts of this case. I agree with Tuckey LJ the decision in Lunt [1999] IRLR 458, in particular the passage at paragraph 21 of the report, is not an exhaustive statement of the situations covered by section 203(3)(b). In this case the Employment Tribunal was entitled to find the requirements of that section in respect of the 'particular proceedings' were satisfied."
"The Claimant in his argument urged the Agreement was not binding on him, and that D2 should have advised him it was not binding. He submitted that the Agreement did not satisfy section 203(3)(b) or section 203(3)(f) of the Employment Rights Act 1996."
He then read the provisions, and went on:
"The claimant says that section 203(3)(b) is not satisfied in that the Agreement did not relate to the particular proceedings within section 203(3)(f). In my judgment, it is impossible for the Claimant to sustain that submission. The Agreement itself provided that it was in connection with all claims he might have. The Claimant said he did not have any claims and was confused. But the Agreement refers to claims he might have.
The Claimant says section 203(3)(f) was not satisfied as there was no statement that the regulating conditions were satisfied. I do not accept that: see paragraph 2(c) of the Agreement. That acknowledgment is, in my judgment, a statement that the conditions have been complied with. In any event, the document as a whole shows that the conditions had in fact been satisfied."
"Mr Paul Mitchell for the Second Defendant urged that it would be stretching the limit of the Second Defendant's duty to say that he should have recognised this as a substantially undervalued settlement. The Second Defendant had said to the Claimant that he was taking a risk in accepting this agreement. That is a powerful argument.
There is a difficulty though. The Agreement, and the provision of the reference, precludes claims for damages for breaches of clause 3(d). It is open to the Claimant to argue the Second Defendant should have advised differently regarding the reference. There is a triable issue about the advice given regarding the reference. If that issue is to be tried, then the Claimant for not recognising the value of the settlement should also be tried."
"The duty imposed by the Lautro rules is not for the protection of employees. It is for the protection of the public. An employee cannot therefore rely on the rules directly. However, they nonetheless demonstrate the importance now attached in the insurance industry to references being given and obtained. To be of value they need to be full, frank and, by implication, accurate references."
"It only remains for me to underline what I anticipate is already clear, that is, that the views which I have expressed are confined to the class of case with which I am now dealing. Some of the statements I have made I appreciate could be applied to analogous situations. However, I do not intend to express any view either way as to what will be the position in those analogous situations."
"Such a term may be implied despite the absence of any legal obligation on the employer to provide a reference (as I understand to have been accepted by the parties in the present case), and may be expressed to apply even after the employee has left his employment with the employer."
"The act of referring one person to another for information or an explanation, 1815; the name of the person given as one prepared to vouch for the character of a person seeking employment or goods offered for sale etcetera; the person himself or loosely the testimonial given, 1865." [quotation unchecked]
"(b) a (usually) written report produced by a referee, a testimonial" [and examples are given, firstly from 1895 and from 1924 Galsworthy's White Monkey. "This was my first job since the war, so I could whistle for a reference"; and a reference to Punch of 21st October 1936."
"Charles,
We have discussed this in the past. It is true that we had very little AFA and will continue to present you with opportunities, as we are currently. As for the response from people in the business, you need to draw your own conclusions as to the inadequate reasons for not being requested for assignment, but rarely is the feedback we get skills related."
Signed off by the UK Resourcing Manager of Syntegra.
"On 29th November 2001, I had an initial meeting with Mr Byrnell to offer him, together with several dozen other employees in the UK and several hundred worldwide, the voluntary termination package. This step was taken as a business imperative to rationalise the systems integration system to better face the emerging challenging in the market."
" …where clauses incorporated into a contract contained a particularly onerous or unusual condition, the party seeking to enforce that condition had to show it had been brought fairly and reasonably to the attention of the other party; that, since the plaintiffs had done nothing to draw the defendants' attention to condition 2, the condition (per Dillon LJ) never became a part of the contract (as per Bingham LJ) the defendants were relieved from liability under the clause; and that, therefore, the plaintiffs could only recover the holding fee assessed on the basis of quantum meruit."
"Held, allowing the appeal, that where an employer summarily dismisses an employee with salary in lieu of notice thereby repudiating the contract of employment, the effective date of termination within the meaning of section 55(4) of [of the then relevant Act, which was the Protection Employment Consolidation Act 1978] was the date of the summary dismissal rather than the expiry of the period in respect of which salary was paid, irrespective of whether or not the contract of employment continued for some purposes after the employers' repudiation; that accordingly, the employee had not been employed for the qualifying period…"
"You are right to assert your contract is and continues to be with Syntegra. If you accept the enhanced package on offer, then your employment with Syntegra will be regarded as having ceased on 31st December."
"The applicant was not dismissed from our employment. He along with a substantial number of other employees was invited to participate in a targeted voluntary leavers programme."
"The essence of the claim is two-fold:
(a) The Second Defendant should have advised that the Agreement was not binding because of its deficiencies having regard to section 203 of the Employment Rights Act 1996;
(b) The Second Defendant's advice and conduct were deficient in that he did not recognise or advise that:
i. The Claimant was in fact the subject of summary dismissal;
ii. The settlement proposed was less valuable than the Claimant might have achieved; and
iii. The advice which, on the Claimant's case, the Second Defendant gave (that the form of the reference could be left for later negotiations) was sufficiently negligent."
"Any provision in an Agreement, whether a contract of employment or not, is void insofar as it purports:
(a) to exclude or limit the operation of any provision of this Act; or
(b) to preclude a person from bringing any proceedings under this Act before an Employment Tribunal."
"Subsection (1) - … (e) does not apply to any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under section 18 of the Employment Tribunals Act 1996
(That will normally result in an agreement in what is called a COT 3 form.)
"and (f) does not apply to any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under section 18 of [the Employment Tribunals Act 1996], and
does not apply to any agreement to refrain from instituting or continuing … any proceedings with [the following provisions of section 18(1) of the Employment Tribunals Act (cases where conciliation available) -
(i) paragraph (d) (proceedings under this Act) [that is the Employment Rights Act],
(ii) paragraph (h) (proceedings arising out of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000),
(iii) paragraph (i) (proceedings arising out of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002),
(iv) paragraph (j) (proceedings under those Regulations),]
conditions regulating compromise agreements under this Act are satisfied in relation to the agreement."
"For the purpose of subsection (2)(f), ie a non-ACAS compromise agreement, the conditions regulating compromise agreements under this Act are that: -
(a) the Agreement must be in writing [and everyone is happy with that in this case;
(b) the Agreement must relate to the particular proceedings [that is one of the matters in issue];
(c) the employee or worker must have received advice from a relevant independent adviser as to the terms effecting the proposed Agreement and in particular its effect on his ability to pursue his rights before an Employment Tribunal;
(d) there must be in force when the adviser gives the advice, a contract of insurance or an indemnity provided for members of a professional or professional body covering the risk of a claim by the employee or worker in respect of loss arising in consequence of the advice [again no problems arises];
(e) the Agreement must identify the adviser [again no problem here];
(f) the Agreement must state that the conditions regulating compromise agreements under this Act are satisfied."
It is (b) and (f) which are said not to have been complied with.
"Held, allowing the appeal, that, contractually, the agreement by the very general nature of the relevant term showed the parties' intention was to settle all differences, actual and potential, arising under statute and at common law and was sufficiently wide to cover the applicant's complaint of detrimental treatment; but that section 203(3)(b) of the Employment Rights Act 1996, consistent with electorative policy of protecting employees from signing away the right to bring employment tribunal proceedings under the Act except where closely defined conditions were satisfied and with the language of the section, requiring that 'particular proceedings' be identified and particularised; that the key question was how the compromise agreement related to the applicant's particular complaint, and did not 'relate to' the applicant's complaint of detrimental treatment under the Act, since it failed to state expressly the particular statutory provision or to supply a description of the legal nature or the factual basis of any proceedings 'arising under statue' or to mention public interest disclosures or any detriment suffered by the applicant; and, that, therefore the employment tribunal's conclusion was correct and the matter should proceed to a full merits hearing."
There is a reference to Lunt, and then:
"Per curiam. If actual proceedings are compromised it is good practice for the particulars of the proceedings and of the particular allegations made in them to be inserted in the compromise agreement in the form of a brief factual and legal description. If the compromise is of a particular claim raised which is not yet the subject of proceedings, it is good practice for the particulars of the nature of the allegations and of the statute under which they are made or for common law basis of the alleged claim to be inserted in the agreement in the form of a brief factual and legal description."
And Smith LJ said that:
"It would not be good practice for lawyers to draft a standard form of compromise agreement which lists every form of employment right known to the law. Compromise agreements should be tailored to the individual circumstances of the instant case."
"The terms set out above are subject to:
(a) Your confirmation that you have taken legal advice from a solicitor as to the terms of this proposed agreement and its effect, in particular the waiver of your statutory rights; …
(c) Your acknowledgment that the statutory provisions regulating agreements of this nature contained in Section 203 of the Employment Rights Act 1996, Section 77(4A) of the Sex Discrimination Act 1975, Section 72(4A) of the Race Relations Act 1986 (as amended), section 9(3) of the Disability Discrimination Act 1995 and section 288(2B) of the Trade Union and Labour Relations Consolidation Act 1992 have been complied with."
"I confirm my acceptance of the terms above set out. The solicitor from whom I have taken legal advice in accordance with paragraph 2(a) above is ..."
"I have advised Charles Byrnell in particular in relation to any claim that he may have for unfair dismissal, sex, race or disability discrimination, breach of contract or unlawful deductions under Part 2 of the Employment Right s Act 1996 and have advised him that the effect of him/her signing this Agreement is that he is barred from pursuing any such claims."
"The claimant says section 203(3)(f) was not satisfied as there is no statement the regulating conditions were satisfied. I do not accept that paragraph 2(c) of the Agreement. That acknowledgment is, in my judgment, statement the conditions have been complied with."
He then goes on to say:
"In any event, the document as a whole shows that the conditions had in fact been satisfied."
"I would add a final word for the benefit of employers and employees who prefer to avoid time consuming and costly litigation about job references. In a case where the terms of an agreed resignation or a compromise and unfair dismissal claim make provision for the supply of a reference, the parties should ensure as far as possible that the exact wording of a fair and accurate reference is fully discussed, clearly agreed and carefully recorded in writing in the top three at the same time as other severance terms."
"I mentioned to him the possibility of negotiating with BT a reference which would then be annexed to the agreement and Mr Byrnell signed the Agreement knowing the terms of the only reference BT was prepared to offer."