Ms M Foster v Guys and St Thomas NHS Foundation Trust: 6010790/2025
EMPLOYMENT TRIBUNALS
Case No 6010790/2025
Between
Ms M FosterClaimantGuys and St Thomas NHS Foundation TrustRespondent
Before
Employment Judge LumbyIn person for claimantMr S Proffitt (instructed by counsel) for respondentDate 3 December 2025
JUDGMENT
The judgment of the Tribunal is as follows: Strike out of claim[1]The claim is struck out under Employment Tribunal Rule 38(1)(a) because it has no reasonable prospect of success. Approved by: Employment Judge Lumby 3 December 2025 Note Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision.
REASONS
[1]These are written reasons for the Tribunal’s decision, given at the request of the claimant.[2]The claimant brought an initial claim under case number 2304705/2022; this is referred to as the first claim. The first claim was settled pursuant to a COT3 agreement, which contained provisions settling not only that claim but future claims as well.[3]The claimant has in this case brought a further claim relating to events after the entry into the COT3 agreement; this is referred to as the second claim.[4]The respondent has applied for the second claim to be struck out, arguing that the terms of the COT3 agreement mean that the Tribunal has no jurisdiction to consider the second claim. This hearing was to consider the strike out application.[5]The hearing was attended by the claimant in person together with Mr Proffit on behalf of the respondent. Submissions were made by both parties. In addition, the claimant provided two written submissions and Mr Proffit provided a skeleton argument. This was all considered in making my decision. Issue[6]The issue to be considered was whether the COT3 agreement prevented the claimant bringing the second claim. If it did, then the Tribunal did not have jurisdiction to consider the claim and so it should be struck out as having no reasonable prospect of success.
Facts
[7]The Tribunal found the following facts proven on the balance of probabilities after considering the whole of the evidence and after listening to the factual and legal submissions made by and on behalf of the respective parties.[8]The claimant was employed by the respondent from 28 January 2019 until 27 September 2024. She brought the first claim on 8 December 2022; it contained complaints of direct discrimination and harassment by reason of race, victimisation and unlawful deduction of wages.[9]The parties undertook settlement negotiations under the auspices of ACAS and on 15 November 2024 entered into a COT3 settlement agreement. That agreement contained no provisions for any financial payment to be made by either party to the other. The agreement was signed by Mr Rhydian Reeves of AltraLaw on behalf of the claimant and DAC Beachcroft LLP on behalf of the respondent. Mr Reeves was a qualified solicitor and both AltraLaw and DAC Beachcroft LLP are firms of solicitors.[10]The COT3 settlement agreement included the following provisions: Ms Michelle Foster (“the claimant”) and Guy's & St Thomas' NHS Foundation Trust (“the respondent”) hereby agree to accept the terms set out below without any admission as to liability in full and final settlement of: 1. the claimant’s claims under case number 2304705/2022 (“the Claim”); and 2. subject to clause 3, all and any other costs, claims, expenses or rights of action of any kind whatsoever, wherever and however arising under common law, statute or otherwise (whether or not within the jurisdiction of the Employment Tribunal) which the claimant has or may have against the respondent or its officers, agents and employees, whether arising directly or indirectly out of or in connection with the claimant’s employment, its termination or otherwise. This clause applies to a claim regardless of whether the claimant is aware at the date of this Agreement of the circumstances which might give rise to such a claim or the legal basis for it. For the avoidance of doubt but without prejudice to the generality of the foregoing this includes claims for constructive dismissal, unfair dismissal, wrongful dismissal, statutory redundancy payment, breach of contract, or any claims arising under the Employment Rights Act 1996, the Trade Unions and Labour Relations (Consolidation) Act 1992, the Protection from Harassment Act 1997, the National Minimum Wage Act 1998, the Human Rights Act 1998, the Working Time Regulations 1998, the Employment Relations Act 1999, the Maternity and Parental Leave Regulations 1999, the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, the Information and Consultation of Employees Regulations 2004, the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendments) Regulations 2006, the Transfer of Undertakings (Protection of Employment) Regulations 2006, the Equality Act 2010, the Data Protection Act 2018, the EU General Data Protection Regulation and any claims arising under retained EU law as defined in section 6(7) of the European Union (Withdrawal) Act 2018.[11]Clause 3 is not relevant to this case but for completeness I set it out as follows: This settlement does not affect any rights the claimant may have in relation to accrued pension rights or personal injury save that any claim for damages for personal injury arising out of the same facts and/or circumstances as the claimant’s claim for race discrimination is settled under the terms of this Agreement.[12]The second claim was brought on 28 March 2025. It brought complaints of discrimination by reason of race, victimisation, harassment and bullying. We discussed these complaints at the hearing and established that the precise complaints were direct discrimination, harassment and victimisation; the relevant events/unfavourable treatment/detriments were all the same, as follows:a. a delay in providing payslipsb. a delay in paying accrued holiday payc. not providing references when requested to do so The protected act for the purposes of the victimisation complaint was the bringing of the first claim.[13]The respondent argued that the intent of the settlement wording was to catch all future claims, whether or not then known, and so the Tribunal has no jurisdiction to hear the second claim. If the effect of the wording was not fully explained to her, her remedy is against her adviser, not the respondent.[14]The claimant argued that the wording of the settlement agreement is ambiguous and does not state a clear intention to release future claims, so reflecting an intention only to release the first claim. She contended that she was not properly advised what she was signing, that she signed under pressure and was given negligent advice. Finally, she argued that she got nothing of real value in return.
Law
[15]Having established the facts, I next considered the applicable law.[16]Any settlement agreement covering the Employment Rights Act 1996 needs to comply with section 203 of that Act. I find that this agreement is in compliance.[17]The law in relation to whether an employee can waive rights in relation to future claims which are unknown to them is evolving. The House of Lords in Bank of Credit and Commerce International SA v Ali and ors 2001 ICR 337, HL allowed for the possibility that certain specific wording in a COT3 settlement agreement might defeat the assumption that an employee did not intend to surrender rights and claims of which he or she was unaware and could not have been aware. Without specifying what that wording may be, it was clear that the precise wording of a general release given in an employment settlement is of paramount importance.[18]This was considered further by the Employment Appeals Tribunal in the case of Royal National Orthopaedic Hospital Trust v Howard 2002 IRLR 849, EAT; the case again related to a COT3 which barred a claim that arose from an employer’s future act not contemplated by the parties at the time of the agreement. The EAT held that ‘the law does not decline to allow parties to contract that all and any claims, whether known or not, shall be released’. The question is whether, looking objectively at the agreement, this was the intention of the parties, or whether some limitation must be placed on the agreement’s scope. If the parties wish to achieve the ‘extravagant result’ of contracting out of claims of which they have and can have no knowledge — whether those claims already exist or not — they must use language which is ‘absolutely clear and leaves no room for doubt as to what it is they are contracting for’.[19]In Arvunescu v Quick Release (Automotive) Ltd 2023 ICR 271, CA, the Court of Appeal held that the wording of a COT3 was wide enough to cover a discrimination claim that had not been contemplated by the parties at the time the agreement was concluded. In that case, the COT3 settlement agreement purported to compromise all claims the employee ‘has or may have’ against their employer ‘arising directly or indirectly out of or in connection with the claimant’s employment with the respondent, its termination or otherwise’, even if the employee ‘may be unaware at the date of this agreement of the circumstances which might give rise to it or the legal basis for such a claim’. The Court of Appeal made a distinction between claims arising ‘out of’ their employment and those arising ‘in connection with’ it, finding the future claim of victimisation did not arise out of that employment but was connected with it and so was barred.
Consideration
[20]I now apply the law to the facts in this case.[21]This is a contractually binding agreement permitted by law. The issue to be determined is whether it excludes the second claim being brought by the claim.[22]The COT3 settlement agreement is said to be in settlement of all claims “of any kind, whatsoever, wherever and however arising” which the claimant “has or may have against the respondent”. It expressly states that these are claims “whether arising directly or indirectly out of or in connection with the claimant’s employment, its termination or otherwise”. It goes on to provide that it applies “regardless of whether the claimant is aware at the date of this Agreement of the circumstances which might give rise to such a claim or the legal basis for it”. It then lists specified claims, including any claims arising under the Equality Act 2010.[23]This wording clearly excludes claims not known about by the claimant at the time her representative signed the settlement agreement. The complaints brought in the second claim are pursuant to the Equality Act 2010 so are clearly within its contemplation. Two of three acts relied on are in connection with her employment; these are the delay in providing her wage slips and paying her accrued holiday pay. The third, being the contended failure to provide a reference, arises in connection with the termination of that employment. The wording (which reflects that considered in Arvunescu) clearly excludes all three complaints in the second claim and does so in extremely clear words.[24]I next consider whether the exclusion is permitted at law. The case law is clear that parties can agree to exclude future and unknown claims. The test of exclusion of laid down in Arvunescu is an objective one, whether looking objectively at the settlement agreement, the parties’ intentions was to exclude such claims. I consider that an objective reading of the clause makes the parties' intention to exclude all such claims clear. In addition, that intention by following the wording approved in Arvunescu is emphasised. Both parties were advised by solicitors holding themselves having the relevant expertise and should therefore have been fully conversant with the law in this regard. I therefore find that the parties’ intentions were to exclude all complaints of the type covered by the second claim. 25. i have considered the claimant's argument to the contrary. She says it does not clearly identify the complaint it was meant to settle; she refers in particular to her victimisation claim which was foreseeable. I do not accept that argument, indeed consider it is entirely clear that claims based on the bringing of her first claim are excluded. For the reasons given above, I consider the wording is clear and unambiguous. She says it does give her anything of value; there is sufficient consideration to make the agreement binding and that is all that is required for a COT 3 agreement.[26]Her other arguments revolve around the advice she received. The rules around advisors do not apply to COT 3 agreements so negligent advice will not invalidate the agreement. She was professionally advised and I have found the parties’ intentions objectively clear from the agreement. If her representatives did not properly explain the impact of what was being signed, this does not preclude a claim in negligence against them.[27]The Tribunal therefore determines that the COT3 agreement prevents all of the complaints in the second claim being brought. As a result, the Tribunal must therefore conclude that it does not have jurisdiction to consider the second claim. This means that the second claim has no prospects of success and so it must be struck out.[28]The claim is therefore struck out under Employment Tribunal Rule 38(1)(a) because it has no reasonable prospect of success. Approved by: