Mr N Schofield v Mr P Dawson and 1 other — 2023

The claimant had previously brought Employment Tribunal proceedings in case 2414841/2018 alleging unfair dismissal, disability discrimination, wrongful dismissal and failure to provide written reasons for dismissal. Those earlier proceedings were resolved by an ACAS COT3 agreement reached on 21 September 2022 and signed on 26 and 27 September 2022. The present claim, issued after ACAS early conciliation on 16 December 2022, alleged post-termination victimisation on the basis that the respondents had deliberately settled the earlier claim while knowing the company was entering liquidation. The tribunal also noted that the sums due under the COT3 had not been paid, but said that non-payment was a matter for enforcement in the County Court or High Court, not the Employment Tribunal.

The tribunal held that section 144 Equality Act 2010 did not prevent the COT3 from operating, because it had been made with the assistance of an ACAS conciliation officer. It then approached the issue as one of contractual construction, referring to Investors Compensation Scheme, BCCI v Ali, Royal National Orthopaedic Hospital Trust v Howard, McLean v TLC Marketing, DWP v Brindley and Aryunescu v Quick Release. On that approach, clause 6 of the COT3 did not bar the victimisation claim because it was limited to claims in relation to or in connection with the subject matter of the earlier claim, and the tribunal did not read this victimisation allegation as falling within that wording as summarised in the case management order.

Clause 7 was materially broader. It covered full and final settlement of “all and any claims” the claimant had or might have in the future, including Equality Act claims, other than claims to enforce the agreement. The tribunal found those words to be sufficiently clear to encompass future claims, and held that a victimisation claim arose from the claimant’s employment or its termination. It further observed that the alleged detriment, namely the purposeful settlement of the earlier claim, was not truly a later event but one that existed at the time the COT3 was made. The tribunal therefore concluded that the COT3 settled the victimisation claim and that the Employment Tribunal lacked jurisdiction to hear it, so the claim was dismissed.