Employment Appeal Tribunal Rules Consent Orders Cannot Be Forced After Withdrawal
The EAT has ruled that employment tribunals cannot issue consent orders if one party has withdrawn their consent before the order is finalised.
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The Employment Appeal Tribunal (EAT) has issued an important clarification regarding the scope of Rule 64 of the Employment Tribunal Rules of Procedure. In the case of Edward v North London NHS Foundation Trust [2026] EAT 116, His Honour Judge Auerbach ruled that a tribunal cannot force a consent order upon a party who has clearly communicated that they no longer agree to the terms.
Background of the Dispute
The case involved a long-running employment dispute between Mr J Edward and the North London NHS Foundation Trust. Following a 2020 liability judgment and a subsequent 2021 remedy hearing, issues regarding mitigation of loss were remitted for a rehearing. In early 2024, the parties appeared to reach a settlement in principle, leading to a draft consent order. However, the claimant subsequently expressed his loss of confidence in the tribunal and stated he no longer consented to the settlement.
Despite the claimant's explicit revocation of consent, the employment tribunal proceeded to issue an order in October 2024 based on the earlier drafted terms. The claimant appealed this decision, arguing that the tribunal lacked the authority to impose a consent order when consent had been withdrawn.
The EAT's Decision
In his judgment, Judge Auerbach emphasised that Rule 64 (now Rule 62 in the 2024 Procedure Rules) requires that both parties must consent to the order at the time it is made. He noted that the term "by consent" signifies a mutual agreement that exists when the tribunal exercises its power to issue the order. The tribunal does not have a general power to resolve live claims simply because a party had previously agreed to settlement terms.
The EAT concluded that the tribunal judge was wrong to embark upon the exercise of enforcing the terms. Consequently, the October 2024 order was quashed. The matter must now return to the employment tribunal to determine the previously remitted remedy issues.
Key Takeaways for Employers
This decision serves as a reminder that settlement agreements must be robust and, if intended to be binding, must comply with statutory requirements such as those under the Equality Act 2010. Attempting to rely on a draft consent order after a party has resiled from the agreement will not satisfy the requirements of Rule 62 or 64. Employers should ensure that any settlement reached outside of an ACAS-conciliated agreement is properly documented to avoid potential challenges if the claimant changes their mind.
Read the entire judgment here: Edward v North London NHS Foundation Trust [2026] EAT 116
