Settlement to Agree

Good morning and welcome back to your weekly case law update. Last week, in the absence of fresh judgments, we looked at snow and severe weather working. This week, with some fresh judgments hot off the press, we have our first official Case Law Update of 2017.

This case is about COT3s. A COT3 is an agreement to settle any potential or ongoing claims made between an employee and an employer with the assistance of an ACAS Conciliation Officer. Unlike Settlement Agreements, there is no requirement for the employee to attain independent legal advice for the COT3 to be binding.

Today’s question is:

Can a COT3, that settles claims between an employee and employer, prevent the same employee from bringing a claim against the same employer, for similar reasons?

Ms Brindley, the Claimant, worked for the Department of Work & Pensions, the Respondent. The Claimant was disabled for the purposes of the Equality Act 2010 and the Respondent was aware of her condition and granted her a disabled parking space.

During a structural reorganisation, the Claimant lost her disabled parking space privileges. The Claimant’s disability meant she had impaired mobility and the stress of getting to work on time, now she did not have a disabled parking space, aggravated her condition. The Claimant was signed off work because of this. The Claimant was then issued a final written warning due to her attendance at work.

The Claimant issued a claim for disability discrimination, stating that the final written warning was a result of the Respondent discriminating against her and not making adjustments for her disability. The Respondent withdrew the warning and the Claim was settled by COT3.

The wording of the COT3 stated that the Claimant agreed to, ‘settle all relevant claims arising from the facts of these Proceedings up to and including the date of this Agreement, including any discrimination, equal pay or harassment claims.’

Two weeks prior to the COT3 being agreed, but, after the Respondent withdrew the Claimant’s final written warning, the Claimant was issued another final written warning for attendance. The Claimant issued a second ET claim for disability discrimination. The Respondent argued that the COT3 prevented the Claimant from bringing further claims and thus the ET did not have jurisdiction to hear it.

The ET held that it did have jurisdiction to hear the claim. The previous COT3 worded stated that the Claimant was prevented from bringing claims ‘arising from the facts of these Proceedings’, which it took to mean the previous final written warning and subsequent claim.

The Respondent appealed but the EAT rejected the appeal. It held the wording of the COT3 only applied to claims that related to the first final written warning. It added that had the agreement been worded simply, ‘all other relevant claims’ then the Respondent would have been able to prevent the Claimant from bringing the second claim.

The agreement to settle take away point:

The wording of a COT3 agreement should be written in such a way that it settles any relevant claims. However, in this case the wording is too specific and this has caused further litigation to be taken against the employer. However, in some cases if the wording is too broad it will also cause a similar problem.

The lesson here, to both HR professionals and Solicitors, when drafting COT3s, Settlements Agreements or any other legal document, is that the devil is in the detail. Sometimes missing or adding out as few as two words can result in an agreement that isn’t fit for purpose. In this instance never add the words these proceedings unless you mean just these proceedings!

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