Section 203 of the Employment Rights Act 1996 states that a Settlement Agreement will be effective where an ACAS Conciliation Officer has “taken action”.
The form used by Conciliation Officers to record settlements is a form COT3, in which the agreed terms are set out and signed by the parties (or their representatives).
In the case of Department for Work and Pensions –v- Brindley UKEAT/0123/16 the EAT considered whether an employee’s claim against her employer was barred by the terms of a COT3 Agreement she had previously entered into.
Mrs Brindley is employed by the Department of Work and Pensions (DWP). She presented a disability discrimination claim in the Employment Tribunal on 14 July 2014 saying that the DWP had refused her a disabled parking space following a reorganisation, despite having had one for several years and having provided details of her needs. She had time off work with severe back pain which she said was caused by the DWP’s treatment of her over this issue and was given a final written warning on 11 April 2014. She sought withdrawal of the warning on the grounds that her sickness absence had been caused by the DWP’s refusal to acknowledge her disability and refusal to provide her with a suitable parking space.
In December 2014 the parties entered into a COT3. The DWP agreed to perform certain obligations and Mrs Brindley agreed to accept this in full and final settlement of her claim against the DWP before the London South Employment Tribunal and all other relevant claims arising from the facts of the proceedings up to and including the date of the Agreement.
Mrs Brindley presented a further claim for disability discrimination on 8 June 2015. This alleged that when her work station was moved without consultation, her arm went into severe spasm, which resulted in an absence in July 2014. She was also absent in December 2014 when she received a further final written warning. She argued that the DWP was discriminating against her by subjecting her to its attendance management policy and procedures, specifically by giving her a final written warning for her absence in December 2014.
The DWP argued that this second claim should be barred by the terms of the COT3.
The Employment Tribunal and subsequently the EAT found that on the wording of the COT3 Agreement the second claim should be allowed to proceed. The wording contained in the Settlement Agreement only settled all claims arising from the circumstances of claim 1 and not the new circumstances referred to in claim 2 which concerned a different warning in a different time frame.
This case illustrates the need for the parties to clearly identify what it is they seek to achieve when entering into a COT3 or Settlement Agreement. Is it particular claims that are being resolved or is there a wider intention? The words used must be clear about the claims that are being settled. Where there is an ongoing employment relationship and therefore the possibility of future claims arising as consequence of a need to apply a particular policy as here, then particular care must be afforded to the wording of the Agreement. For any advice in relation to the resolution of employment disputes via ACAS or under a Settlement Agreement please contact a member of the employment team.
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