Dec 6
The claimant was formerly employed for a short time by the respondent. After his employment was terminated he brought proceedings against the respondent for race discrimination. The proceedings were compromised by a “COT3” agreement. Shortly afterwards when he was refused a post with a wholly-owned subsidiary of the respondent in Germany, the claimant brought a new claim against the respondent alleging that he had suffered victimisation contrary to sections 112, 39(3) and 27 of the Equality Act 2010 because he had previously brought a claim of race discrimination against the respondent which, through its close links with its subsidiary, had been responsible for him not being offered the post. At a preliminary hearing the employment tribunal (i) decided that the new claim fell within the scope of claims which were compromised by the COT3 and (ii) struck out his claim on the basis that there was no reasonable prospect that the respondent was liable for his rejection from the post. The Employment Appeal Tribunal dismissed an appeal.
On the claimant’s further appeal
Held, appeal dismissed. In interpreting the terms of a contract settling claims the key elements were ascertaining what the reasonable person with the parties’ background knowledge would take to be its meaning and giving effect to what the parties intended. Analysing the terms of the relevant clause in the COT3 agreement, the claimant agreed that the payment provided for by the COT3 agreement was accepted by him in full and final settlement of: all or any claim or right of action of any kind whatsoever which he might have against the respondent arising directly or indirectly out of or in connection with his employment with the respondent, its termination or otherwise. The second part of the relevant clause made it clear that the claims or rights of action encompassed within the clause included but were not limited to claims under the Equality Act 2010. The present claim fell within the wording of the agreement. It was a claim or right of action brought under the Equality Act 2010. It was a claim which the claimant might have against the respondent. It arose indirectly in connection with the claimant’s employment with the respondent, since it was contended that the respondent was responsible for the German company victimising the claimant, that is subjecting him to a detriment (refusing to appoint him to a post) because he had done a “protected act”, namely, that he had brought a claim against the respondent for race discrimination on the termination of his employment. A necessary part of the claim would involve consideration of whether the reason for the refusal of the post was because the claimant had brought proceedings against his former employer on the termination of his employment. The present claim was, therefore, indirectly connected to or linked with the claimant’s previous employment. There was no ambiguity which might justify giving a different interpretation to the COT3 agreement. Accordingly the claim that the respondent breached section 112 of the 2010 Act arose indirectly in connection with the claimant’s employment with the respondent, so that the claim was compromised or settled by the COT3 agreement. Accordingly, the employment tribunal had been right to strike out the claim (paras 13 16–18, 19, 27, 28, 29).
The claimant appeared in person.
Jamie McCracken (instructed directly) for the respondent.