Mr M Ross v Department for Work and Pensions: 4110823/2021
JUDGMENT
The Judgment of the Tribunal is that the Tribunal has jurisdiction to consider the claim.REASONS
[1]The claimant, Martin Ross, submitted a claim form on 15 August 2021, in respect of a period of employment with the respondent between 1 March 2021 and 30 June 2021. The claim was denied in its entirety by the respondent. E.T. Z4 (WR)[2]After various case management procedures, on 12 November 2021 the claimant submitted an “updated Scott Schedule” in which he specified complaints of an alleged failure to make reasonable adjustments, in terms of s.20 of the Equality Act 2010; and victimisation in terms of s.27. The respondent responded to the Scott Schedule by way of attachment to an email dated 9 December 2021. They continued to deny the claim. Final Hearing io 3. After further case management procedures, on 19 April 2022 a Final Hearing was fixed in Inverness for the period from 3 to 7 October 2022. Respondents’ strike out application[4]On 20 May 2022, the respondent’s solicitor sent an e-mail to the Tribunal with an application that the claim be struck out. Her application was based on an alleged “A CAS COT3 settlement,” in respect of previous employment tribunal proceedings which the claimant had raised against the respondent (Case No 4103885/18). These proceedings related to the claimant’s employment with the respondent for the period from 1 March 2009 to 9 January 2018. His claim settled by way of written Agreement, on or about 15 November 2018. Subsequently, the claimant was employed again by the respondent on new terms and conditions. The present case (Case No 4110823/21) related to that period of employment from 1 March 2021 to 30 June 2021[5]The claimant opposed the application and I directed that a preliminary hearing be fixed to consider and determine the issue. The preliminary hearing was held on 26 July 2020 by way of video conference using the “Cloud Video Platform” (“CVP”). The claimant was unrepresented. The respondent was represented by a solicitor, Ms Monan.The evidence
[6]I heard evidence, on behalf of the respondent from Andrew Gibson, the solicitor who was instructed by the respondent in the claimant’s previous employment tribunal case. He spoke to an Affidavit which is referred to for its terms. The parties had also submitted a joint bundle of documentary productions (“P”). These are referred to in Mr Gibson’s Affidavit. The facts ioThe facts
[7]Mr Gibson presented as credible and reliable. I had no reason to doubt the accuracy of his Affidavit. The facts were either agreed or not disputed. He accepted, in response to my questions, that the written Agreement the parties had entered into (P. 56-57) was neither an ACAS COT3 Agreement, nor a “Settlement Agreement”.[8]The focus of the hearing, therefore, was the circumstances which had led to the parties completing the Agreement, in terms of which the claimant agreed to withdraw his claim and to it being dismissed, in exchange for a “compensation payment of £5,000”; and the issue was whether that Agreement barred the claimant from bringing future claims arising out of subsequent employment with the respondent..[9]The claimant was represented by, Ian Finlayson, a trade union representative, at that time. There was no suggestion other than that the claimant entered into the Agreement freely and in full knowledge of its terms. “Chronology of settlement discussions”[10]This chronology was set out on pages 2 and 3 of Mr Gibson’s Affidavit. I was satisfied that it was accurate and I so find in fact. It is in the following terms:- “Events of 6 November 2018 Following the second day of the hearing, I exchanged e-mails with Mr Finlayson, regarding the claimant’s instructions to settle the claim for £5,000 (P.38-40). Events of 7 November At 08:54, I e-mailed Mr Finlayson attaching draft COT3 terms (P.41-43). At 09:10, I e-mailed ACAS copying Mr Finlayson and attaching the same COT3 terms I had sent Mr Finlayson at 08:54 (P.44-46). At 09:14 Mr Finlayson e-mailed me confirming that he would sign and return the same COT3 terms (P.47). At 09:46, Ms Gladden (ACAS Conciliator) e-mailed me and the claimant’s representative stating that ACAS could not get involved as it appeared to her that a prior binding agreement had already been reached by parties without conciliation involvement, and so the dispute was already settled. Her e-mail also explained to both parties that agreements reached without ACAS involvement are ineffective in barring Tribunal complaints (P.49-50). At the start of the hearing that morning, despite the e-mail from ACAS, Mr Finlayson intimated withdrawal of the claim verbally in chambers before the Judge. It was agreed that written formal withdrawal would follow. Events of 8 November 2018 I exchanged further e-mails with Ms Gladden, copying Mr Finlayson, in which I explained that I did not agree with the approach that ACAS were taking in this case, and that parties would go ahead with the agreement as planned (P.48-51). At 1 1:23, I e-mailed Mr Finlayson. I proposed that, in light of the approach being taken by ACAS, we proceed with him printing and sign two copies of the COT3 terms, writing to the Tribunal formally intimating withdrawal, and sending me the claimant’s bank details for payment of the settlement sum (P.52-54). Events of 15 November 2018 In accordance with my proposal, I received a letter from Mr Finlayson dated 13 November 2018 with the claimant’s bank details and confirming he had written to the Tribunal to withdraw the claim and, enclosing signed copies of the COT3 (sic) (P.55) I then signed the COT3 (sic) terms on behalf of the respondent (P.56-57)”.[11]On intimation of the withdrawal of the claim, the Tribunal issued a dismissal Judgment (P.58). Respondent’s submissions[12]The respondent’s solicitor made oral submissions at the hearing. She also provided written submissions. These are referred to for their terms. In support of her submissions, she referred to the following cases: DWP v. Brindley [2016] UKEAT/0123/16 Arvunescu v. Quick Release (Automotive) Ltd [2022] EAT26 io Royal National Orthopedic Hospital Trust v. Howard [2002] WL31050484.[13]The following is a brief summary. She submitted that the words in the Agreement (P.56): “events occurring after this agreement has been entered into” meant “future events” and this included the present claim.[14]She further submitted that such wording was consistent with Howard, and said this: “the COT3 (sic) specifically refers to future Equality Act and Employment Rights Act claims arising from future events, with both parties knowing that the claimant’s first period of employment had come to an end”.[15]With reference to s.144(4) of the 2010 Act, she submitted that the Agreement had been reached “with the assistance of ACAS”, and referred to the e-mail exchanges between Mr Gibson and Ms Gladden. She referred, in particular, to the e-mail of 8 November 2018 from ACAS (P48-49), “which informed 25 parties of their rights (and without which) no subsequent Agreement would have been reached by parties. ACAS effectively forced parties into a position where they had to agree between them how to proceed. Any Agreement or Agreement in principle which existed before the e-mail from ACAS on 8 November 2018, was not compliant with s.144(4) of the Equality Act 201 0. It is the subsequent Agreement - made in the wake of ACAS assistance - that complies with s.144(4)"[16]Finally, the respondent’s solicitor said this “Conclusion “It is therefore submitted that the Agreement in question is an Agreement 5 made with the assistance of ACAS and is therefore an enforceable waiver of the claimant’s 2010 Act claims. The wording of such waiver explicitly includes employment and Equality Act claims arising from events occurring after the Agreement was entered into. There is no legal prohibition against that We invite the Tribunal to strike out claim 4110823/2021 on this basis." io Discussion and decision Relevant statutory provision[17]S.144 of the Equality Act 2010 (“the 2010 Act”) is in the following terms:- “144 Contracting Out(1) A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act.(2) A relevant non-contractual term (as defined by section 142) is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act, in so far as the provision relates to disability.(3) This section does not apply to a contract which settles a claim within section 114.(4) This section does not apply to a contract which settles a complaint within section 120 if the contract (a) Is made with the assistance of a conciliation officer, or (b) Is a qualifying (settlement agreement) (my emphasis).(5) A contract within sub-section (4) includes a contract which settles a complaint relating to a breach of an equality clause or rule or of a nondiscrimination rule.(6) A contract within sub-section (4) includes an agreement by the parties to a dispute to submit the dispute to arbitration if- (a) The dispute is covered by a scheme having effect by virtue of an order 5 under section 212A of the Trade Union & Labour Relations (Consolidation Act 1992), and (b) The agreement is to submit the dispute to arbitration in accordance with the scheme." io[18]The respondent’s solicitor relied on s.144(4)(a).[19]A so-called “contracting-out agreement” has the effect of contracting out of employment rights and obligations and of settling current and/or prospective litigation, arising from the same facts. However, in an employment context, for such an agreement to be legally binding the terms must be set out either in a Tribunal Judgment; by way of an ACAS conciliated settlement, which is normally reduced to writing in the form of a COT3 Agreement; or in a “Settlement Agreement” which satisfies certain legal conditions.[20]The respondent’s solicitor relied on the “ACAS conciliated settlement”. There was no question of there being a judgment or a Settlement Agreement in the required terms.[21]In particular, she maintained, with reference to s.144(4)(a), that the agreement had been reached “with the assistance of a conciliation officer”.[22]I was not persuaded that that was so.[23]That was clear from the e-mail exchanges between Mr Gibson and the ACAS Conciliator, Jackie Gladden, when she declined to engage (P.50-47).[24]While I am bound to say that I was surprised that Ms Gladden was not prepared to assist with the preparation of a COT3 Agreement, which in my many years of experience, is quite normal, nevertheless it was clear she was not prepared to do so. She did not “assist” the parties in reaching agreement. They did so themselves. With reference to Jones v. Bedybuys Ltd ET Case No. 19844/84, Ms Gladden said this in her e-mail of 8 November 2018 to the parties’ representatives (P.48/49):- “The parties subsequently reached their own agreement and the Tribunal held that the conciliator could not have been said to have taken action in relation to the final settlement and it was ineffective to bar the claimant's Tribunal complaint.”[25]Further, when he gave evidence Mr Gibson, very fairly accepted not only that there was not a COT3 Agreement or a Settlement Agreement, but also at the time the Agreement was signed (P.56-57) the claimant’s subsequent claim was not in contemplation. Indeed, it could not possibly have been, as neither party was aware that the claimant would be employed again by the respondent over two years later.[26]The Agreement does say that it is in full and final settlement of, “all and any claims that the claimant has or may have in the future against the respondent or any of its associated companies or its or (sic) their officers or employees whether arising from his employment with the respondent or it’s termination on 1 January 2018 or from events occurring after this agreement has been entered into (my emphasis)”(P5Q). However, the present claim was not part of the factual matrix which was the subject of the November 2018 Agreement and the only sensible meaning of that provision is it that it could only relate to claims arising from the claimant’s employment with the respondent which ended on 1 January 2018.[27]With reference to Howard, looking objectively at the Agreement, it was not the intention of the parties to prevent the claimant bringing a claim against the respondent, in the future, in respect of a different period of employment. Indeed, Mr Gibson accepted, when he gave evidence, that the Agreement could not possibly relate to any claims arising from the claimant’s subsequent employment with the respondent.[28]Frankly, it would be very strange indeed if it did, as, in effect, that would have given the respondent “carte blanche” to break the law and discriminate against the claimant, at will.[29]Further, it is implicit from the relevant case law and such cases as, Howard and McLean v. TLC Marketing Pic UKEAT/0429/08, which deal with the drafting of COT3 Agreements, that there is a need for precision and that such an Agreement can only possibly relate to the period of employment in the proceedings. It was clear, for example, that when Judge JR Reid QC said this at para. 9 in his Judgment in Howard: “As a matter of public policy, there was no reason why parties should not able to contract out of claims of which they have and can have no knowledge, whether or not such claims have already come into existence at the date of the agreement, but if the parties seek to achieve such an ‘extravagant’ result they must do so in language which is “absolutely clear and leaves no room for doubt as to what they are contracting fof', he was speaking about claims arising from the period of employment under consideration at the time, but not yet identified or advanced.[30]In Harvey on Industrial Relations and Employment Law at part P1, para.693.09, there is the following passage, which refers to the Judgment in Howard:- “Whilst it may be possible to contract out of such ‘extravagant’ claims by means of a COT3 Agreement, it should be noted that it will not be possible to do so by way of a Settlement Agreement, as the only claims that can be covered by a Settlement Agreement are those relating to the “particular” complaint or proceedings, i.e. those that have actually arisen or have been raised between the parties at the date of the Agreement.”[31]There was no COT3 Agreement; agreement was not reached with the assistance of an ACAS Conciliation officer; in any event the wording of the Agreement did not relate to claims arising in respect any subsequent employment of the claimant by the respondent.[32]I had no difficulty, therefore, arriving at the view that the Agreement relied upon by the respondent was not a bar to the claimant bringing claims against the respondent in respect of any subsequent employment with them. The present claim, therefore, was not compromised by the Agreement in 5 November 2018.[33]Accordingly, the Tribunal has jurisdiction to consider the claim and it should now proceed to the Final Hearing, as scheduled.[34]The jurisdictional point was only taken by the respondent some 9 months after the claim was submitted to the Tribunal, after many case management issues had been addressed, extensive correspondence and after a Final Hearing had been fixed. It appeared to me that it was something of an afterthought.