COT3 agreement did not prevent second claim

Department for Work and Pensions v Brindley [2016] | EAT

Mrs B brought a claim against the DWP alleging disability discrimination.

In the first claim Mrs B challenged a decision to withdraw a parking space from her, make reasonable adjustments and issue a final written warning for absence on 11 April 2014.  This claim was settled by an Acas COT3 agreement.  The terms of the COT3 agreement were agreed on 11 December 2014 and signed by Mrs B on 19 December 2014 and on behalf of the DWP on 31 December 2014.  The COT3 agreement was stated to be in full and final settlement of:

“… her claim against the Respondent … under case number 2301290/2014 (“the Proceedings”) and all other Relevant Claims arising from the facts of the Proceedings up to and including the date this Agreement [sic]. …”

The ‘Relevant Claims’ were expressly stated to be:

“… claims related to [Mrs B]’s employment with the [DWP], whether at common law, under Statute, or pursuant to European Union law either against the [DWP], or any officer or employee of the [DWP] including without limitation any claim relating to equal pay, discrimination, harassment, and claims under the Employment Rights Act 1996, or any other claim which might be made by [Mrs B] in relation to her employment to a court or tribunal provided that nothing herein contained shall affect [Mrs B]’s accrued pension entitlement or any claim for latent personal injury.”

Mrs B presented a second claim on 8 June 2015.  This claim was also for disability discrimination but related to allegations that the DWP had subjected her to attendance management procedures and issued a final written warning for poor attendance in November 2014.

The employment tribunal decided that the COT3 only covered claims arising from the circumstances of the first claim.  The COT3 did not prevent the second claim, which ‘was a separate claim about a different warning in a different time frame’.  The second claim could, therefore, be pursued by Mrs B.

The EAT agreed with the employment tribunal.  Specifically, it rejected an argument on behalf of the DWP that ‘the facts of the Proceedings’ covered any application of the attendance management policy by the DWP against Mrs B up to and including the date the COT3 was agreed.

The decision in this case is a reminder that careful drafting of COT3 agreements (and settlement agreements) is always required.  Even precedent documents (or a draft provided by the Acas conciliator) should always be carefully reviewed to ensure they are fit for the specific circumstances as each case is different.

If you are about to enter into a COT3 or settlement agreement we can help and make sure that your business is protected in the best possible way against the risk of future claims.