In the case Bathgate v Technip UK Ltd and others the Employment Appeal Tribunal has held a settlement agreement cannot compromise a discrimination claim that has not yet arisen.
In this case the Claimant signed a voluntary redundancy agreement which settled his claims against his employer. There was a specific waiver which set out a list of claims, including age discrimination under section 120 of the Equality Act 2010. There was also a general waiver which included future claims. He received legal advice on the agreement. It provided for an enhanced redundancy and notice payment payable with his final salary, plus a further sum to be paid in June 2017 (Additional Payment). The Additional Payment was to be calculated by reference to a collective agreement which had been compiled prior to the introduction of age discrimination legislation. It was stated to only apply to officers who had not reached the age of 61. The Claimant was under the impression that he was due to receive the Additional Payment.
In early March 2017, the Claimants employer decided that he would not receive the additional payment because he was aged 61 or over. This decision was not communicated to him until June 2017.
He raised a claim for age discrimination.
The Employer Technip accepted that the reason the Claimant was not paid the Additional Payment was his age, but submitted that he had compromised his right to pursue a claim and, in any event, the Equality Act 2010 did not extend to the Claimant in his capacity as a seafarer.
An Employment Tribunal held that Mr Bathgate had lawfully settled his claim.
The Claimant appealed on the ground that section 147 of the Equality Act 2010 did not permit settlement of claims before they have arisen and the statutory words “the particular complaint” limited settlement to claims that are known to the parties.
The voluntary redundancy agreement could not settle the Claimants claim of age discrimination. Section 147 of the Equality Act 2010 prevents the settlement of claims before their existence is known and the existing case law is not to the contrary effect.
The EAT said “In this case the Claimant signed away his right to sue for age discrimination before he knew whether he had a claim or not. While that may be possible at common law, the Act restricts parties’ ability to do so. Third, it would appear to me that the inclusion of a claim in a compromise agreement defined merely by reference to its legal character or its section number does not satisfy the language of s. 147. The words “the particular complaint” suggest that Parliament anticipated the existence of an actual complaint or circumstances where the grounds for a complaint existed. I do not consider that the words “the particular complaint” are apt to describe a potential future complaint.”
Mr_Charles_Melvin_Bathgate_v_Technip_UK_Ltd_and_Others__2022__EAT_155.pdf (publishing.service.gov.uk
James Williams
