In Department for Work and Pensions v Brindley, the EAT has upheld an employment tribunal’s decision that an employee’s claim for disability discrimination was not barred by an earlier COT3 agreement.
Mrs Brindley issued a first claim for disability discrimination against the DWP in 2014, which, amongst other things, related to a final written warning, given in April of that year, pertaining to a period of sickness absence. That claim was settled on 11 December 2014, via a COT3 agreement. The COT3 was stipulated to settle the specific claims being pursued and “all other Relevant Claims arising from the facts of the Proceedings up to and including the date [of] this Agreement.”
In November 2014, prior to the parties entering into the COT3, Mrs Brindley received another final written warning in relation to a separate period of sickness absence. She issued a further claim for disability discrimination in relation to the second warning. DWP argued that she was barred from pursuing this second claim by the COT3 relating to her original action.
The Employment Judge disagreed, as, subsequently, did the EAT.
Whilst the events forming the basis of Mrs Brindley’s second claim, namely the second warning, occurred within the period “up to and including” 11 December 2014 (the date of the COT3), the COT3 qualified the additional claims to be settled with the words “arising from the facts of the [first] Proceedings”. The EAT held that this covered the specific application of the absence management policy that gave rise to the warning in April 2014 – not the application of the policy in a general sense. As the events leading to the second warning in December 2014 were separate and did not arise from the same facts, the EAT concluded they were not covered by the COT3 agreement
This case serves as a useful reminder of the need for clarity when drafting any form of settlement agreement to ensure that the document effectively implements the parties’ intentions
David Potter
Partner
0845 274 6819