Astons Solicitors

When the parties enter a COT3 it is either to settle an existing ET case via ACAS or a dispute before proceedings are issued and can include termination of employment.  Sometimes there is an attempt to widen the settlement of claims to include future claims which claimant solicitors often resist. COT3 agreements differ from settlement agreements as they are brokered by ACAS.

It is quite rare for a case involving a COT3 settlement to appear before the Courts and even rarer to have a Court of Appeal authority on the issue.  The Court of Appeal in Arvunescu v Quick Release Ltd at the end of last year have found that a COT3, in circumstances where it is sufficiently widely drafted, can prevent a further claim by the same claimant against the respondent subsequently.

In this case the claimant had a short employment with the respondent which terminated in 2014.  The claimant brought proceedings for race discrimination. In March 2018, the claimant settled his claims under a COT3.  It is not clear from the Court of Appeal judgment why the initial claim would have still been going for 4 years and took so long to settle.

In May 2018, the claimant issued a new claim for victimisation against the respondent. The claimant applied for a new role in January 2018 with a German company which was a subsidiary of the respondent.  In February 2018, he was rejected for the post and alleged that the rejection was because he brought proceedings for race discrimination previously thus an act of victimisation. The issue arose as to whether the COT3 signed in March 2018 in respect of the original claim prevented the claimant from bringing this new claim as the respondent argued.

At first instance in the ET, the Tribunal agreed with the respondent and found that the COT3 covered this claim and the case could therefore not proceed.  The claimant appealed to the EAT who agreed with the Tribunal.  The claimant further appealed to the Court of Appeal and his appeal was dismissed.

The Court of Appeal found that although the new victimisation claim did not arise directly or indirectly out of employment, the COT3 (which the parties did not want to reveal in its full form) was sufficiently widely drafted to include claims indirectly in connection with employment.  The Court of Appeal provided a detailed analysis of the claim and it considered the context of the COT3 to be highly pertinent.  The Claimant relied on the discrimination claim as the protected act for the victimisation claim and the intention of the COT3 was to settle all claims that were in existence at the time and connected to his employment.  With the dates of the application, rejection and COT3 the victimisation claim pre-dated the COT3 so that claim was in existence at the time of the COT3.  The Court of Appeal agreed with the decision of the ET and EAT on this point and the Claimant’s claim failed.

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Astons Solicitors
10th January 2023

Happy New Year to all our readers.  As we enter a new year it is time to reflect both on 2022 and then on what we can expect in 2023.

There were a number of important decisions in 2022 with cases discussing religion and belief such as the Forster case on gender critical beliefs and the Stonewall cases.  This is definitely a developing area of the law.  There were cases on remedy and the ACAS uplift including our own Biggs case which made the national press. Working time and holiday continued to feature with the ongoing Pimlico Plumbers case and of course the COVID related cases continued to be determined.  Consultations took place and the parental bereavement legislation was introduced but there was little legislative change.

In terms of what we can expect in 2023, there is some cases of course on appeal but nothing noteworthy at this stage.  We expect one big change in that the Retained EU Law (Revocation and Reform) Bill will be passed which will repeal or assimilate all retained EU laws, abolish general principles of EU Law in the UK and repeal directly effective EU law rights and obligations.  Much of UK Employment law is either “home grown” such as the Employment Rights Act or from Europe such as Human Rights laws, Equality laws, Working Time and TUPE.  Rather than look at each piece of legislation one by one the Government has adopted a more radical wipe out and remake approach and it remains to be seen what impact this will have for employers in the UK.  One to watch this space for.

A smaller piece of legislation is also expected in the form of the Neonatal Care (Leave and Pay) bill which will introduce up to 12 weeks’ neonatal care leave and pay for parents whose babies need at least 7 days hospital care within the first 28 days. The Government is also looking at minimum levels of service during strikes in respect of transport which no doubt will be welcomed by employers even outside the industry after a disruptive start to the new year.

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Astons Solicitors
10th January 2023

Traditionally, female members of the Tribunal panel have been called Madam and male members of the panel Sir.

As of 1st December 2022, the Senior President of Tribunals and the Lord Chief Justice have announced that Employment Tribunal Judges (and those of the Employment Appeal Tribunals) should no longer be addressed as Sir/Madam but be called “Judge” when addressed.  Lay members of the panel will still be addressed as Sir/Madam.

The move is said to be a move to modern and simple terminology whilst retaining respect for the important judicial role and to assist litigants in person in particular navigate the Tribunal litigation.  What to call the Judge is often a question litigant in person have particularly with female judges who are often referred to as Ma’am as well as Madam or Judge.

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Astons Solicitors
20th December 2022

The DWP has announced its annual employment law rate increases which will take effect from 1st April 2023 as follows:

• Statutory maternity pay, paternity pay, adoption leave pay, shared parental leave pay and parental bereavement pay £172.48 (from £156.66)
• Statutory Sick Pay (SSP) £109.40 (from £99.35)
• National Minimum Wage (NMW) by age range
  • 23 + £10.42 (from £9.50)
  • 21-22 £10.18 (from £9.18)
  • 18-20 £7.49 (from £6.83)
  • 16-17 £5.28 (from £4.81)
  • Apprentices £5.82 (from £4.81)
  • Accomodation Offset £9.10 (from £8.70)

The rates are adjusted every year and this year sees some significant increases in NMW for older workers in particular pushing the new rates above £10 for the first time.

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Astons Solicitors
15th December 2022

In 2020 Clarkes Mechanical Ltd decided to cut its costs because of a downturn in work. Due to this Mr Robson, a 69-year-old plumber and heating engineer working for the company, was unexpectedly told he was going to be made redundant. There was no warning given and he wasn’t given any information as to why he was being made redundant. Shortly after this meeting, Mr Robson was given a copy of the scoring criteria used and he accused it of “fabricating” evidence.

He believed the dismissal was unfair and was based on age discrimination. He then alleged that his colleagues referred to him as “half-dead Dave”.

Although there was no direct evidence to suggest that Mr Robson had been dismissed because of his age, the company was unable to explain its decision and because the scoring criteria was created after Mr Robson’s dismissal it was not score fairly and couldn’t be considered  contemporaneous evidence to support their decision to dismiss him. Mr Robson had been a highly skilled, versatile worker who had no performance or conduct issues, inferring that his dismissal was due to his age.

Additionally, the tribunal accepted that the nickname “half-dead” was an age-related epithet and was derogatory.  The tribunal found that the nickname was used in general circulation, had been used on-site and no-one had intervened to stop it, amounting to direct age discrimination.

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Astons Solicitors
29th November 2022

ACAS has produced new advice on handling staff suspensions at work. The outline guidance can be seen here: ACAS guidance on suspension. 

It sets out information about suspension and the circumstances which may prompt suspension of an employee. ACAS advise that the employer should consider each situation carefully before deciding whether to suspend someone and set out what other options could be available.

There is also some more specific guidance on suspension during an investigation at work which can be accessed here: ACAS guidance on suspension during an investigation.  The guidance covers deciding whether to suspend someone, the process for suspending someone, supporting an employee’s mental health during suspension and pay and holiday during suspension.

It is important to get suspension right otherwise, the employer could be exposed to claims for constructive dismissal and/or discrimination. Critically, suspension should also be kept under review and as short as possible. For more information, please reach out to one of the team at Astons Solicitors.

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Astons Solicitors
22nd September 2022