Edward v North London NHS Foundation Trust: EAT rules on limits of tribunal consent orders

The Employment Appeal Tribunal has ruled that an employment tribunal cannot make a binding consent order under rule 64 of the Employment Tribunal Rules of Procedure 2013 where a party has withdrawn their agreement before the order is made, even if that party had previously indicated consent to the proposed terms.

In J Edward v North London NHS Foundation Trust [2026] EAT 116, His Honour Judge Auerbach allowed an appeal against a decision of Employment Judge Goodman, who had made an order in October 2024 disposing of a remitted remedy claim on terms the claimant had originally agreed in January 2024 but later rejected.

The underlying litigation had a lengthy history. Mr Edward, formerly employed by the Tavistock and Portman NHS Foundation Trust, succeeded in a victimisation claim relating to his dismissal in 2018, and was awarded compensation at a remedy hearing in 2021, subject to a reduction for failing to mitigate his losses. Both parties appealed aspects of that award, and the EAT remitted the question of mitigation for rehearing in 2023.

Ahead of a further remedy hearing listed for February 2024, the respondent proposed a draft consent order increasing the award and settling the mitigation issue for an additional £9,660. Mr Edward indicated in writing that he agreed to the terms, albeit reluctantly and under what he described as pressure arising from a lack of confidence in the tribunal panel. The order was never formally made, however, and administrative confusion led to a judgement being issued dismissing the claim on the mistaken basis that it had been withdrawn. By the time this error came to light, Mr Edward had changed his mind, informing both the tribunal and the respondent that he no longer consented to the January terms and wished to proceed to a remedy hearing.

Employment Judge Goodman revoked the erroneous withdrawal judgement but subsequently made an order in substantially the January terms, describing it as having been made by consent, notwithstanding Mr Edward's clearly stated opposition at the October 2024 hearing.

On appeal, Judge Auerbach first considered whether rule 64, which allows a tribunal to make an order or judgement "if it thinks fit" where parties have agreed terms, could apply even though the underlying settlement provision would itself have been unenforceable under section 144 of the Equality Act 2010, given the absence of a qualifying settlement agreement. Reviewing the relevant authorities, including Carter v Reiner Moritz Associates Ltd and Mayo-Deman v University of Greenwich, he concluded that the tribunal's power under rule 64 does not depend on the underlying agreement being independently enforceable.

That conclusion did not resolve the appeal, however. The central question was whether rule 64 could be invoked once a party had communicated that they no longer consented to an order being made. Judge Auerbach held that it could not. The natural meaning of the rule, and the requirement that any order be identified as made "by consent", presupposes that both parties want the tribunal to make the order at the time it does so. Where a judge is aware that one party opposes the order, it cannot properly be described as consensual, regardless of any earlier agreement.

The appeal was accordingly allowed and Employment Judge Goodman's October 2024 order quashed. The remitted remedy issues, including the mitigation question originally sent back by the EAT in 2023, will now proceed to a further hearing before the employment tribunal.