In person For the v Respondent — 2020

Ms Kirchhof brought a victimisation claim under section 27 Equality Act 2010 arising from concerns about the terms of a COT3 settlement agreement reached on 30 November 2017. The tribunal recorded that the alleged detriments were the inclusion of clauses 9 and 17, the absence of an express clause preserving protected disclosure rights, and the compensation paid under the settlement. The hearing was limited to whether the claim was barred by the COT3 and whether it was in time.

The tribunal held that the COT3 validly compromised the victimisation claim. It found that clause 13 expressly waived victimisation claims, clause 14 was clear enough to cover claims not yet in contemplation and future claims, and the agreement satisfied section 144(4)(a) Equality Act 2010 because it was made with the assistance of an ACAS conciliation officer. Although the tribunal accepted that clauses 17A(1)(b) and 17B were broad enough to restrict discussion of alleged discrimination, and that the EHRC guidance criticised some confidentiality clauses, it concluded that those matters did not invalidate the agreement as a whole.

The tribunal also held that section 43J Employment Rights Act 1996 voids offending provisions rather than the whole COT3, and that the absence of an express protected-disclosure clause did not affect enforceability because the statutory protection operates automatically. It did not make findings that the ACAS conciliator acted improperly, and it rejected the suggestion that the omission of personal injury or pension wording invalidated the waiver.

On limitation, the tribunal treated the matter as a one-off act with continuing consequences rather than a continuing act. It found that the ordinary three-month time limit expired on 28 February 2018, that the claim was nearly two years out of time, and that there was no basis for a just and equitable extension. It noted that the claimant only came to think a tribunal claim was possible in October 2019, then waited further before presenting the claim on 23 February 2020, after early conciliation ran from 11 January 2020 to 11 February 2020.