COT3 WORDING: GLAD IT’S ALL OVER?

23 Jan

Here is a cautionary tale for employers.

What happens when a Claimant brings a claim and signs a COT3? End of matter parties move on. Well that is not always true. The key is what the wording of the COT3 actually covers...

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Here is a cautionary tale for employers.

What happens when a Claimant brings a claim and signs a COT3? End of matter parties move on. Well that is not always true. The key is what the wording of the COT3 actually covers.

In the case of EAT in Department of Work & Pensions v Brindley UKEAT/0123/16 a COT3 was signed in December 2014 after a agreement was reached on 11th December 2014. The following wording was used:

“In full and final settlement of: her claim against the Respondent currently before the London South Employment Tribunal under case number 2301290/2014 (“the Proceedings”) and all other Relevant Claims arising from the facts of the Proceedings up to and including the date this Agreement.”

The key issue was what was meant by “all other Relevant Claims arising from the facts of the Proceedings up to and including the date this Agreement”. The claims before the Tribunal were about the issuing of a warning under her employer’s absence management procedure in April 2014 and car parking (reasonable adjustment claim).

Shortly after the COT3 was signed the Claimant started a second claim in respect of a further warning under her employer’s absence management procedure issued in November 2014. The employer applied to strike out the claim asserting that it was covered by the COT3 agreement.

The Employment Judge rejected this summing up the situation concisely in this way: It was a separate claim about a different warning in a different time frame.

The Employment Appeal Tribunal agreed. The “facts of the Proceedings” the Judge held are the specific matters which led to the particular application of the attendance management policy to the Claimant which resulted in the April 2014 warning.  They are not any application of the attendance management policy to the Claimant happening at any date down to 11th December 2014.

When seeking to settle claims a standard form of words is used by ACAS. Many parties pay little attention to those words thinking that it will simply mean all employment matters other than personal injury and pension rights have been compromised. They walk away glad that it’s all over. This is dangerous complacency; after all, ACAS are only usually concerned with the case in hand and will have no knowledge of any matters which do not appear on the Claim Form unless these have been specifically raised by the parties during the conciliation process.

I try and ensure that the COT3 wording covers any and all claims arising within a defined period when acting for the employer. Equally I seek to limit settlement of claims outside of the present claims when acting for an employee. You should do the same.

Peter D

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