In the case of Department for Work and Pensions v Brindley UKEAT 0123_16_1711 the Employment Appeal Tribunal (“EAT”) considered whether the wording of a COT3 agreement barred Mrs Brindley from bringing further proceedings against her employer, the DWP. The EAT held that, due to the particular nature of the COT3 wording, the settlement agreement did not bar Mrs Brindley from bringing the further proceedings.

The facts

On 14 July 2014 Mrs Brindley brought a claim against the DWP for discrimination arising on the grounds of her disability (“the First Claim”). The First Claim asserted that Mrs Brindley had been discriminated against by her being given a final written warning on 11 April 2014 for absence from work. Mrs Brindley’s case was that she had been denied the used of a disabled parking space after a reorganisation  and that the removal of the parking space had caused her stress, and that this stress had made her condition worse.

The Respondent contested Mrs Brindley’s claim and a COT3 form settling Mrs Brindley’s claim was entered into by the parties. This agreement was signed on 19 December 2014 by Mrs Brindley and on 31 December 2014 by the DWP, and was headed “Settlement reached on 11/12/2014 as a result of conciliation action”. Under clause 1 of the COT3 the DWP agreed to perform its obligations at clause 2 of the agreement if Mrs Brindley accepted the performance of those obligations in full and final settlement of: “…her claim against the Respondent currently before the London South Employment Tribunal 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 defined as: “… claims related to the Claimant’s employment with the Respondent, whether at common law, under Statute, or pursuant to European Union law either against the Respondent, or any officer or employee of the Respondent 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 the Claimant in relation to her employment to a court or tribunal provided that nothing herein contained shall affect the Claimant’s accrued pension entitlement or any claim for latent personal injury.”

On 8 June 2015 Mrs Brindley submitted a further Employment Tribunal claim (“the Second Claim”). The basis of the Second Claim was that she had been discriminated against by being given a final written warning for her attendance on December 2014.

The DWP submitted its response to the Second Claim on 10 July 2015. An amended version of this response was sent to the Tribunal on 19 November 2015. In the amended version of the response the DWP argued that the Second Claim was barred by the COT3 agreement dated 11 December 2014 and made an application for the Second Claim to be struck out.

On 22 December 2015 the Employment Tribunal concluded that it would not exercise discretion to strike out the Second Claim as, although the DWP had fulfiled its obligations in the December 2014 COT3 agreement, the COT3 agreement only stated that the claims being withdrawn were those claims “arising from the facts of [the First Claim]”. The Employment Judge noted that the First Claim related to car parking, reasonable adjustments, and the first final written warning given on 11 April 2014. The Second Claim related to a second final written warning given on 28 November 2014. The facts of the Second Claim did not therefore arise from the facts of the First Claim, meaning that Mrs Brindley was not barred from bringing the Second Claim.

The DWP appealed the decision of the Employment Tribunal, arguing principally that the factual matrix of the Second Claim arose from that of the First Claim as it related to attendance management, and that the Second Claim should therefore have been struck out. Mrs Brindley argued that the Employment Tribunal had been correct in its decision.

The EAT dismissed the appeal, holding that the Employment Judge had interpreted the December 2014 COT3 agreement correctly: the reasonable person would have interpreted from the wording of the contract that only facts arising from the First Claim were being settled by the COT3.

About Redmans Employment Team

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees

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