Arbitration in Sex Discrimination Cases

Wed, 27 Apr 2011

What impact does an arbitration clause have on a Claimant’s ability to pursue a Sex Discrimination claim? Russell Bailey examines the High Court’s judgment in Clyde and Co LLP v Krista Bates van Winkelhof.
By Russell Bailey
In Clyde and Co LLP and another v Krista Bates van Winkelhof [2011] EWHC 668 (QB) the Claimant city solicitors’ firm made an unusual and ambitious application for mandatory injunctive relief. The Defendant had been a partner in the Claimant and had signed a deed of adherence providing for conflicts to be resolved (a) internally (b) by mediation and, ultimately, (c) by arbitration. Following her expulsion from the partnership, the Defendant presented complaints to the employment tribunal including allegations of sex discrimination and unlawful detriment.
The Claimant sought to enforce compliance with the deed of adherence by an order requiring the Defendant to apply to the tribunal for a stay of proceedings; it being accepted that the High Court lacked jurisdiction to order a stay in a different forum.
Rejecting the application Slade J held that the arbitration clause fell foul of the contracting out provisions of the Employment Rights Act 1996 and the Equality Act 2010. She also considered that an application should more properly have been made to the tribunal for a stay and not for injunctive relief in the High Court.
It should be noted, however, that a contractual provision requiring participation in non-binding forms of alternative dispute resolution (such as mediation) may well merit a stay of tribunal proceedings in accordance with the overriding objective.

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