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COT3 wording – the need to get it right

Mrs Brindley brought two tribunal claims for disability discrimination against her employer, the Department for Work & Pensions (“DWP”). The first claim was made in 2014 relating to a final written warning for absence (“First Warning”). The parties entered into an agreement to settle the claim relating to the First Warning via a COT3 in December 2014. As with all COT3 agreements, the terms were agreed with assistance from ACAS.

In November 2014, before the above COT3 was agreed and signed Mrs Brindley received a second final written warning (“Second Warning”) for a different period of absence. She later appealed against the Second Warning in January 2015 but her appeal was unsuccessful.

The COT3 she had agreed in December 2014 included wording which covered all claims in that case and "all other Relevant Claims arising from the facts of the Proceedings up to and including the date (of) this Agreement".

In June 2015, Mrs Brindley brought a tribunal claim in relation to the Second Warning. DWP sought to have that claim struck out by the Tribunal as they claimed it had been settled by the COT3 signed in December 2014.

The Tribunal held that whether they [the tribunal] “had jurisdiction turned on the words of the COT3…” . The Tribunal made a finding that the COT3 did not cover claims arising from the new circumstances of the Second Warning claim.  The tribunal found that 'the facts of the Proceedings' only covered the specific matters that led to the first warning, not any action by the Respondent up to the date of the COT3.

The DWP appealed to the EAT claiming that the First Warning and the Second Warning were interlinked as they both arose from the application of the Respondent’s attendance management policy and the same “factual matrix”. The EAT disagreed and allowed Mrs Brindley to proceed with the Second Warning claim.  The COT3 covered all claims included within the original tribunal case along with all other relevant claims arising from the facts of the proceedings up to the date of the agreement but not the Second warning claim.  The EAT found that the wording of the COT3 was not wide enough to cover any claims arising from the Second Warning which was a new claim.

What should you be doing now?

Employers must act with caution whenever settling matters and ensure that any wording in Settlement or COT3 agreements properly set out the parties' intentions during negotiations. It is all too easy in trying to avoid a Tribunal hearing to rush drafting a COT3 especially if the hearing is looming the next day. Therefore take time and advice to ensure that the intentions of the parties during negotiations are recorded properly in the COT3 or Settlement Agreement.

In this case, and as mentioned by the EAT, the decision may have been different if the COT3 agreement covered “all matters arising from the claimant’s employment” up to the date of the COT3. If that has been the case then Mrs Brindley may well have been barred from bring her Second Warning claim.

What does this mean for you or your business?

This case serves as a useful reminder to take advice when documenting any settlement agreements (including COT3s), in order to ensure that the correct wording is used to cover all claims arising out of employment (not just the specific circumstances of the claim which is being settled). 

 

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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