This week’s case of the week asks the question: Can an employee who settles his tribunal claim by COT3 then bring another claim in the county court?

Yes, says the high court.

The Facts

The Claimant was a customer adviser working in an office. Following accusations of disability discrimination and failure to make reasonable adjustments, he resigned in 2015.

He subsequently submitted an employment tribunal claim. This was settled by COT3 agreement shortly afterwards. The agreement contained a clause saying, “the Claimant is not prevented from pursuing his potential claim for damages arising from personal injury allegedly suffered as a result of work-related stress which is currently being handled by Norrie Waite and Slater Solicitors”.

The Claimant attempted to bring this claim. However, the Defendants tried to get it struck out under CPR3.4(2)(b) (i.e., that it was an abuse of process).

They said that because the Claimant could have settled this part of his claim in the employment tribunal (realistically in the COT3) this new action amounted to undue harassment.

It is a general rule of law that proceedings should be dealt with in one action where possible. However, did the Claimant’s attempt to sue for personal injury in the county court amount to abuse of process?

The Decision

No: the High Court judge quoted Lord Bingham in Johnson v Gore-Wood & Co [2002]:

“The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.

It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

Adopting this “broad, merits-based” approach, the High Court considered that the Claimant’s new action did not amount to a breach of process: he made his intentions perfectly clear and the Defendant’s signed and agreed to the COT3. It would also be strange to preclude a Claimant from doing something he had expressly contracted for.

The Takeaway Point

It is essential that COT3 and settlement agreements are drafted accurately and precisely. If you want to preclude a Claimant from making any future claims, include this provision.