Mr B Deasy v Elior UK plc T/a Caterpillar Services: 6019665/2024

EMPLOYMENT TRIBUNALS

Case No 6019665/2024

Between

Mr B DeasyClaimant

Elior UK plc t/a Caterpillar ServicesRespondent

Before

Employment Judge Livesey

In person for claimant

Mr Harding (instructed by counsel) for respondent

Date 25 November 2025

JUDGMENT

The Claimant’s claim is dismissed under rule 38 (1)(a) of the Employment tribunals Rules of Procedure as having no reasonable chances of success.

REASONS

[1]By a claim form presented on 25 November 2024, the Claimant brought complaints of detriment and dismissal on the grounds of public interest disclosure (‘whistleblowing’) and unpaid wages in relation to his employment as a chef at the Tudor Rose Court retirement development, Southsea over a period of four months in 2024.

[2]After a response had been filed, the matter came before Employment Judge Volkmer at an initial Case Management Preliminary Hearing which took place on 9 September 2025. The issues were discussed and agreed and recorded in the Case Summary and the case was listed for a hearing over 5 days in Southampton in June 2026. The claim of ‘ordinary’ unfair dismissal was dismissed upon withdrawal by a Judgment dated 10 September. This hearing was also listed in order to consider the striking out of the claim because of a particular issue which had been raised in the response (see below).

[3]An application made by the Claimant to postpone the hearing was refused yesterday by the Regional Employment Judge and again by me. The Claimant had been particularly aggrieved that an amended response had been received late. In fact (and perhaps somewhat unusually) the Respondent had not been given permission to amend its response at the Case No: 6019665/2024 10.2 Judgment - rule 59 hearing in September despite the clarity that had then been provided in respect of the issues. Permission was requested after the hearing on 17 September and Employment Judge Bax had directed that the matter was to have been considered at this hearing also.

[4]The application was not opposed by the Claimant and was granted and would have taken effect had the claim not have been dismissed. Strike out

[5]Paragraph 6 of the Response read as follows; “In any event, the Claimant is precluded from bringing his claim by the terms of a COT3 between the Claimant and the Respondent dated 17th August 2021 under which the Claimant agreed that he would not bring any future legal action against the Respondent, save in limited circumstances. On this basis, the Respondent contends that any claim for detriment suffered as a result of the Claimant having made a protected disclosure, should be struck out as an abuse of process under Rule 13 (1) (b) of the Employment Tribunal Procedure Rules 2024 (ET Rules) and/or under Rule 38 (1) (a) of the ET Rules because it is scandalous/vexatious or has no reasonable prospects of success.”

[6]In determining that application, the Respondent produced a bundle of documents, the electronic pages to which have been referred to in square brackets below. The Claimant also produced a witness statement in the form of an email dated 2 November 2025. A number of authorities and the claim and response forms from previous litigation were also produced. Relevant principles

[7]Under rule 38 of the Employment Tribunal Procedure Rules 2024, a tribunal could strike a claim out if it appeared to have been scandalous, vexatious or had no reasonable prospect of success. In other words, that it was “bound to fail” (Twist DX-v-Armes

UKEAT/0030/20/JOJ

). In Balls-v- Downham Market School [2011] IRLR, Lady Justice Smith made it clear that "no” in rule 38 meant "no”. It was a high test.

[8]It was a two-stage process; even if the test under the rules was met, a judge also had to be satisfied that his/her discretion ought to have been exercised in favour of applying such a sanction (HM Prison Service-v-Dolby

[2003] IRLR 694

). Striking out a claim was a draconian step and numerous cases had reiterated the need to reserve such a step for the most clear and exceptional of cases (for example, Mbuisa-v-Cygnet Healthcare Ltd

UKEAT/0119/18

[9]In Ezsias-v-North Glamorgan NHS Trust

[2007] EWCA Civ 330

, the Court of Appeal stated that it would only have been in exceptional cases that a claim might have been struck out under the rule where there was a dispute between the parties on the central facts. In such a case, the Claimant’s contentions must ordinarily have been be viewed at their highest, although all of the available material had to be considered on such an application (see Balls above). Case No: 6019665/2024 10.2 Judgment - rule 59

[10]The approach, was considered in detail in Mecharov-v-Citibank [2016] ICR and Xie, above, as follows;(a) Only in the clearest case should a discrimination claim have been struck out;

(b) Where there were core issues of fact that turned to any extent on oral evidence, they should not have been decided without hearing oral evidence;

(c) The claimant's case must ordinarily have been taken at its highest, not only in relation to the facts, but the reasonable inferences that might have been drawn from them (Xie above);

(d) If the claimant's case was "conclusively disproved by" or was "totally and inexplicably inconsistent" with undisputed contemporaneous documents, it may have been struck out;

(e) A tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.

[11]This case concerned the provisions of a COT3 agreement dated 17 August 2020 and whether it operated to defeat this claim.

[12]It had been recognised for some time that it was possible for the terms of an ACAS-conciliated agreement to bar, not only present claims, but future claims as well. Indeed, it was possible for such an agreement to effectively release claims or rights that a claimant had not even contemplated, if that was the clearly indicated intention stated within it.

[13]In Bank of Credit and Commerce International SA-v-Ali and ors

[2001] ICR 337

, HL, the House of Lords considered the effect of a COT3 agreement purporting to have been ‘in full and final settlement of all claims whether under statute, common law or in equity of whatsoever nature that exist or may exist and, in particular, all or any claims, rights or applications of whatsoever nature that the claimant has or may have or has made or could make in or to the [employment] tribunal, except the claimant’s rights under the respondent’s pension scheme’. Their Lordships held that this agreement did not prevent an employee proceeding with a claim for ‘stigma damages’ arising out of the employer’s breach of the implied duty of trust and confidence, because neither party could have contemplated such a claim as the law had stood at the time that the agreement was signed. However, the majority judgments allowed for the possibility that certain specific wording might have defeated 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 if such rights had been capable of subsisting in law.

[14]See, also, Royal National Orthopaedic Hospital Trust-v-Howard

[2002] IRLR 849

, EAT in which the EAT considered whether a COT3 had barred a claim that arose from an employer’s later act, which had not been contemplated by the parties at the time of the agreement. The COT3 had stated that the employer’s payment was made ‘in full and final settlement of these proceedings and of all claims which the claimant has or may have against the respondent’ under a number of listed statutory provisions, including the Equality Act. Subsequently, the Respondent prevented the Claimant from carrying out a day’s work at the Hospital on a private basis and he complained of victimisation, a claim which the Respondent argued, was barred by the conciliated agreement. The EAT held that, whilst the law Case No: 6019665/2024 10.2 Judgment - rule 59 did not ‘decline to allow parties to contract that all and any claims, whether known or not, shall be released’, the question was whether, looking objectively at the agreement, that had been the intention of the parties at the time. If the parties had wished to achieve the ‘extravagant result’ of contracting out of claims of which they had no knowledge, they were required to use language which was ‘absolutely clear and leaves no room for doubt as to what it is they are contracting for’. The Claimant’s victimisation claim was permitted to proceed in those circumstances.

[15]In Department for Work and Pensions-v-Brindley EAT 0123/16, the wording of the release clause in the COT3 agreement was found not even to have gone far enough to bar a claim that arose out of facts known to the parties at the date on which the agreement was signed. The clause barred ‘all other relevant claims arising from the facts of the proceedings up to and including the date this agreement [sic]’. The first claim, settled by a COT3, was for disability discrimination and concerned DWP’s application of its attendance management policy and the decision to issue the Claimant with a final written warning for absence on 11 April 2014. Her second claim for disability discrimination related to the fact that another final written warning for attendance was issued on 28 November 2014. The Respondent argued that the second claim was barred by the earlier COT3 agreement on the basis that all the pertinent facts in respect of the November warning were known to both parties when they had signed the COT3 and that it was a ‘relevant claim’ that was founded upon the same factual matrix. The EAT, however, held that the wording of the release clause meant that a relevant claim was caught only if it arose from the specific factual matrix of the proceedings and the tribunal had jurisdiction to hear the second claim.

[16]More recently, in Arvnescu-v-Quick Release (Automotive) Ltd

[2023] ICR 271

, the Court of Appeal agreed that a claim could not continue in the following circumstances; the Claimant had brought race discrimination claim following the termination of his employment which was settled in March 2018 under a COT3, which purported to cover all claims that he ‘has or may have… arising directly or indirectly out of or in connection with..’ his employment. In May 2018, he sought to bring a victimisation claim after he was rejected for a job with a wholly-owned subsidiary of the Respondent. He asserted that the rejection had been procured because of his earlier discrimination claim. The EAT considered that the Judge, in striking out the claim, had not potentially considered an argument under s. 112, that the Respondent had ‘knowingly helped’ the act of victimisation. The Court of Appeal, however, considered that the COT3 had been broad enough to cover that angle as well. At the very least, the claim had arisen ‘in connection with’ his employment and the Tribunal’s decision was reinstated.

[17]Similarly, in Ajaz-v-Homerton University Hospital NHS Foundation Trust

[2023] EAT 142

, a claimant was prevented from bringing a new claim based upon the same protected disclosures which had founded an earlier claim which had been settled through a COT3. Under the terms, she had agreed not to reactivate ‘the issues/complaints in the proceedings or issue any further and/or new claim or claims..against…[the Respondent]..arising from or in relation to the issues/complaints in the proceedings.’ The agreement had also contained a warranty that she was not aware of any claims other than those within the proceedings. Although the new claim had Case No: 6019665/2024 10.2 Judgment - rule 59 concerned new detriments, they have been based upon the original, contested disclosures in the first claim.

[18]More recently, in Bathgate-v-Technip Singapore Pte Ltd

[2023] CSIH 48

, the Court of Session reiterated that future claims which had not arisen at the time that the COT3 had been entered into could have been barred by a settlement agreement so long as the types of claim had been clearly identified and “the objective meaning of the words used is such as to encompass the settlement of the relevant claim.” No “temporal barrier” existed as long as what was being signed away was sufficiently clear for the Claimant to have been able to understand what he was doing. In Clifford-v-IBM UK ltd

[2024] EAT 90

, the Employment Appeal Tribunal followed Bathgate on facts which were said to have been indistinguishable.

[19]The authorities read as a whole seemed to demonstrate two things; that clear wording was required to enable a court or tribunal to identify which rights had been signed away and be satisfied that a signatory ought to have known (or been able to know) what he/she was giving up. Secondly, perhaps as a result of the earlier decisions, the wording used in many such settlements had been tightened up such that it had become increasingly hard for claimants to escape them.

Discussion and conclusions

[20]On 8 June 2020, the Claimant had issued proceedings against the Respondent in the Employment Tribunal (No. 1402736/2020). The claim had concerned alleged unpaid wages and related to time when he had worked at the Portsmouth FC when the Respondent had held the catering contract. Specifically, it was alleged that incorrect wages had been used as the basis of his furlough payments under the Coronavirus Job Retention Scheme such that he suffered monthly underpayments whilst on that scheme.

[21]The Claimant asserted that he had been the Respondent’s employee, whereas it had alleged that he had simply been engaged as a casual worker. The Respondent also alleged that the catering contract had been taken back in house by the Club and that a TUPE transfer had occurred on 1 June 2020. On that basis Portsmouth Community Football Club Ltd was joined as the Second Respondent.

[22]The case was ultimately settled and the parties entered into a COT3 settlement agreement through ACAS on 17 August 2021 [33-38], the terms of which included his agreement to accept the settlement sum (£1,500); ….“in full and final settlement of any and all claims, (of whatever nature, and whether contractual, statutory or otherwise) that the Claimant has or may have, whether contemplated or not, and/or whether in existence at the date of this COT3 Agreement or not, against the First Respondent and/or Second Respondent and/or any of their associated companies, officers or employees in any jurisdictions, including, but not limited to …(b) any claims arising out of or in connection with his engagement/employment and/or termination of the same with the First Respondent and/or Second Respondent… …(e) all of the claims of whatever nature to the High Court, County Court, the Employment Tribunal or any other supervisory or judicial Case No: 6019665/2024 10.2 Judgment - rule 59 authority that the Claimant has or may have against the First Respondent and/or the Second Respondent and/or any of their Associated Companies, and/or their officers or employees anywhere in the world, arising out of or in relation to his engagement and/or employment with the First Respondent and/or the Second Respondent and/or his termination and/or from events occurring after this COT3 Agreement has been entered into, including, but not limited to, claims under contract law, the data Protection Act and any other applicable data protection legislation,....[a comprehensive list of jurisdictions followed, which included reference to the ‘Employment Rights Act 1996’].

[23]Upon the claim’s withdrawal [40], it was then dismissed by a Judgment dated 14 September 2021 as against both Respondents [42].

[24]In the Claimant’s statement, he asserted that he had entered into the COT3 “after months of financial duress caused by Elior and the Mental and Physical Duress caused by Covid and Elior”. The nature of any such ‘duress’ was not explained or described, but he said that he had never intended to work for the Respondent again at that point.

[25]The Claimant’s case was that he had started working for a company called Radish in June 2024. The business was transferred under TUPE to the Respondent on 3 September 2024 and the matters which were the subject of this new claim brought about his resignation (excessive and unreasonable work hours and demands). His alleged public interest disclosures (and the basis of his parallel complaints under ss. 44 and 100 reflected in the Case Summary) concerned the working practices of the Second Chef, Steve Neilson, which he considered to have been unsafe and unhygienic. He claimed to have made the disclosures throughout his employment and they resulted in the unreasonable demands that were then placed upon him which caused him to resign.

[26]The problem that the Claimant had was the line of authorities discussed above which clearly indicated that COT3 and other agreements could successfully operate to bar further and/or future claims so long as such a possibility had been clearly identified and catered for.

[27]In my judgment, Clause 1 (b) had been too broad and vague to have operated in that way on its own, but Clause 6 (e) had clearly and precisely identified past and future claims and listed the legislative provisions which might have founded them. The Clause was not limited to claims arising out of the Claiamnt’s previous engagement with the Respondent in 2020, but “events occurring after this COT3 Agreement [had] been entered into”.

[28]These claims were capable of having been anticipated as legal causes of action at the time that the COT3 was signed (see Bank of Credit and Commerce International above) and the wording of the COT3 was not so narrow as to have limited the protection to new claims which might have arisen from the facts which underpinned the previous action (Brindley).

[29]The most significant concern, perhaps, concerned whether Clause 1 (e) was too ‘rolled up’ in the manner in which it had dealt with future claims. In Bathgate, the carve out clause had specifically referred to the types of Case No: 6019665/2024 10.2 Judgment - rule 59 discrimination (e.g. direct, indirect and age) which were covered (see paragraph 9). In Clifford too, although a little broader, there was nevertheless the identification of the particular types of claims which were being signed away. This COT3 was said to have been ACAS’s standard, boilerplate version. Whilst there was no reason to doubt that, was its reference to a statute by name which, as in the case of the Employment Rights Act, could have founded may different types of claims, enough?

[30]Mr Harding argued that, to have required more, would have been to have descended to an unnecessary level of granularity which the caselaw had not suggested was required. As in Bathgate (paragraph 34), “the statutory purpose was to protect claimants from signing away rights without a proper understanding of what they were doing”. This COT3 enabled him to have known what he was doing. In paragraph 33, Lord Malcolm was explaining why the Clause in Hinton had failed and stated that “the key question was: how does the agreement relate to those particular proceedings? The agreement in question [in Hinton] did not satisfy the statutory requirements because there was no ‘particularity’ in the waiver: no particular statute was mentioned; there was no particular description of the nature or basis of the claims being settled; and no mention of claims of the kind actually being made.” Here, there was mention of the particular statute which may have founded any future claims which were being prevented.

[31]I accepted the proposition that neither Bathgate nor Clifford were not authority for the suggestion that every possible right of action and/or section had to be named before a COT3 could have been effective in the way that the Respondent had contended. That was wholly unrealistic. The simple question was whether the claim brought was one which was covered by the clear wording of the COT3.

[32]There were a number of arguments which were raised by the Claimant;32.1 First, he argued that the Respondent had not really been involved in the negotiations over the COT3 and/or the payment of the settlement sum. It had all been achieved with the Second Respondent. Be that as it may, the COT3 clearly contractually benefitted the Respondent in the same way as it did the Club;

32.2 He also argued that Clause 6 of the 2020 COT3 carved out his ability to bring a complaint under ss. 47B and/or 103A of the Act [36-7 and 43]. Clause 6 concerned confidentiality in relation to the agreement itself; it required the Claimant not to discuss or disclose the existence or terms of the agreement beyond a named narrow class of people, but nothing within it was to have been taken as a fetter of his ability to make a protected disclosure under s. 43A. That did not mean that the clause was a green light for him to bring future claims under ss. 47B or 103A. The ability to make disclosures, without the risk of it being alleged that he had breached the COT3, did not equate with the ability to pursue complaints under the Act as a consequence of having made disclosures; Case No: 6019665/2024 10.2 Judgment - rule 59

32.3 He also contended that he had entered the COT3 under duress. No detail of the ‘duress’ was provided in his witness statement or oral evidence. During his closing submissions, he described it as having been a form of economic pressure caused by alleged repeated under payments of furlough which had left him without funds. There was insufficient evidence to found an argument of duress in the legal sense of coercion or force or, indeed of mistake or estoppel or any other contractual or equitable doctrine which might have served to have set aside the contract.

[33]Accordingly, since the COT3 was otherwise compliant with s. 203 of the Act and for the reasons given above, it was effective to bar this subsequent claim which was therefore an abuse of the process and had no reasonable prospect of succeeding. It was an appropriate exercise of my discretion to dismiss it under rule 38 (1)(a).