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Previous COT3 settlement did not preclude all discrimination claims

In Department for Work and Pensions v Brindley UKEAT/0123/16, the Employment Appeal Tribunal (EAT) has upheld an employment tribunal’s decision that it had jurisdiction to hear a second disability discrimination claim despite the parties settling a previous claim under a COT3. A COT3 is an agreement which records the terms of settlement of an employment tribunal claim, or potential claim.

The Claimant issued a claim (‘First Claim’) against her employer, the Department of Work and Pensions (‘DWP’) on 14 July 2014 following a final written warning being issued to her on 11 April 2014 for her level of sickness absence resulting from severe back pain. For several years she had been allocated a parking space, however, after a reorganisation she was denied a disabled parking space. She argued that the stress had exacerbated her condition resulting in her sickness absence. She requested that the warning be withdrawn as her sickness absence was caused by DWP’s failure to acknowledge her disability and its discriminatory conduct.

The DWP accepted that the Claimant was disabled. It argued that her managers were not aware of her mobility issues when the reorganisation took place but since then she has been allocated a permanent parking space. It confirmed that she had been given a first warning in December 2013, a second warning in March 2014 and following an occupational health referral, a final written warning on 11 April 2014 for her sickness absences. She appealed unsuccessfully.

In December 2014, the parties entered into a COT3 which referenced the case number of the proceedings and also sought to settle all other Relevant Claims arising from the facts of the Proceedings up to and including the date of the Agreement.

Mrs Brindley issued a further claim for disability discrimination on 8 June 2015 (‘Second Claim’) following further absences in July 2014 and December 2014, and after receiving a further final written warning on 28 November 2014. She argued that DWP was discriminating against her by imposing warnings under the absence management policy.

The DWP argued that her Second Claim was barred by the terms of the COT3. The tribunal considered whether the wording ‘all other Relevant Claims arising from the facts of the Proceedings up to and including the date of this Agreement’ meant that the Claimant had settled the Second Claim. The Judge concluded that the First Claim was settled but that the Second Claim which concerned a different warning at a different time was not settled by the terms of the COT3.

DWP appealed. It argued that both claims related to the application of the attendance management policy and the imposition of warnings. It therefore related to a relevant claim arising out of the proceedings and was part of the same continuum. The EAT disagreed. The facts of the proceedings were the matters which led to the application of the policy and the warning in April 2014 and not to the application of the policy up to 11 December 2014.

It is important to consider the parties’ intentions when settling a legal dispute. It highlights the need to consider carefully and be clear which claims are being settled. 

This article is not a substitute for legal advice on specific facts and circumstances. It is designed as a free update on the law at the time of publishing. Knight Polson Limited trading as QualitySolicitors Knight Polson accepts no responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.

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