Can a COT3 agreement prevent an employee bringing a subsequent claim?
In the recent case of Department for Work and Pensions v Brindley UKEAT/0123/16/JOJ, the Employment Appeal Tribunal (EAT) held that an employee’s claim for disability discrimination was not barred by the terms of a COT3 agreement settling a previous claim for disability discrimination.
The Claimant was disabled. She brought a claim, Claim 1, on 14 July 2014 alleging that the Respondent had discriminated against her when issuing a final written warning on 11 April 2014 after two weeks’ sickness absence, and in failing to make a reasonable adjustment by allowing the Claimant to use a disabled car parking space.
Claim 1 was settled in the form of an ACAS conciliated COT3 agreement which stipulated it was in full and final settlement of ‘all other relevant claims arising from the facts of the proceedings up to and including the date of this agreement’. The agreement was dated 11 December 2014.
The Claimant brought Claim 2 on 8 June 2015, alleging that the Respondent had discriminated against her by subjecting her to its attendance management policy and issuing her with a further final written warning on 28 November 2014. The Respondent argued Claim 2 was barred by the COT3 as all relevant facts relating to the warning of 28 November 2014 were known to both parties when they signed the COT3 and Claim 2 was a ‘relevant claim’ relying on the same factual matrix.
The Employment Judge held that a reasonable person would conclude that all claims arising from the circumstances of Claim 1 had been settled, but the written warning referred to in Claim 2 was not part of the settlement. Claim 1 related to reasonable adjustments and the warning issued on 11 April 2014. Claim 2 related to the warning issued on 28 November 2014 and dismissal of the Claimant’s appeal against this warning on 26 January 2015.
The COT3 stated ‘all other relevant claims’ as those ‘arising from the facts of the proceedings’ i.e. the facts of Claim 1. The wording of the COT3 agreement did not bar all other relevant employment claims or all claims arising within the period up to 11 December 2014 and therefore, did not bar Claim 2.
The Respondent appealed the decision. The EAT dismissed the appeal and stated that Claim 2 was not a claim ‘arising from the facts of the proceedings’. A second claim would be barred if it arose from the specific factual matrix of the proceedings. The ‘facts of the proceedings’ were the specific matters leading to the particular application of the attendance policy to the Claimant, resulting in the April 2014 warning.
This case highlights the importance of the wording of a COT3, particularly where the employment relationship is ongoing. It is therefore important that both the Claimant and the Respondent ensure they have legal representation when negotiating the terms of a COT3 agreement.
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