Beyond the Employment Tribunal: what happens next when a claim just won’t go away?

You have heard the grievance, carried out a detailed investigation, and issued the employee with a carefully reasoned outcome. You have spent hours of management time and emotional energy dealing with the subsequent Employment Tribunal claim and have achieved a commercial settlement with the employee. Imagine the sinking feeling when another claim rears its head, brought by the same employee raising the same or very similar allegations.

Thankfully there will often be legal options to cut short repeat claims in their early stages. For example, Weightmans recently acted for a city council client to strike out a personal injury claim brought on the heels of a recently settled Employment Tribunal action. The injury claim was held to be an ‘abuse of process’ because the claimant had already compromised all available remedies.

What happened?

The claimant was an ex-employee of the respondent whose employment ended in 2015. He commenced proceedings against his former employer in the Employment Tribunal on the grounds of discrimination. These proceedings were compromised via a payment to the claimant and pursuant to the standard terms of an ACAS COT3 agreement. At a later date, the claimant issued county court proceedings seeking damages for personal injury (psychiatric harm) and associated losses. The respondent successfully applied to strike the claim out as an abuse of process. The claimant appealed.

The decision

The claimant’s case on appeal was that the wording of the COT3 excluded claims for personal injury. Therefore, whilst he could have brought a claim for injury damages in the Employment Tribunal proceedings, in fact he had not done so. Accordingly, he argued that his claim should be allowed to proceed.

The appeal was dismissed by the Judge, who agreed with the respondent that the further claim was an abuse for the following reasons:

• The ET claim was a claim for unlawful discrimination;
• The claimant could have sought damages for psychiatric injury in the ET;
• Had the ET claim been adjudicated upon by the Tribunal, the claimant could not properly have issued the county court claim;
• The COT3 did not qualify or limit the scope of the compromise of the ET claim; and
• The claim that was compromised was therefore “a claim for all recoverable compensation however described or characterised”.

All of the above factors taken together meant that the claimant was precluded from pursuing his personal injury claim in the new forum of the county court.

What does this mean for me?

This is an important Judgment. If the claimant’s construction of the settlement had been accepted, other discrimination claims in the Employment Tribunal (which not uncommonly allege stress/anxiety extending to psychiatric injury) may have been capable of being resurrected and pursued after having been compromised via a COT3.

The crucial point is that all relevant remedies were available to the claimant in the Employment Tribunal claim. He could not simply pick up what was effectively the same claim in a different court, simply because he had never explicitly raised the issue of personal injury damages as part of his Employment Tribunal claim.

This decision reinforces the idea that, where a claimant compromises a discrimination claim, then their right subsequently to pursue a personal injury claim on the basis of the same allegedly discriminatory acts is also likely to be curtailed. This is a reassuring message for employers.

To minimise the risk of successful ‘repeat’ claims, it is crucial to make sure that settlement and COT3 agreements are tightly drafted, as well as acting promptly to challenge new claims when a claimant attempts to revive old issues. Our employment and litigation experts would be happy to advise you and guide you through this process.

Peter Wake is Head of Local Government Litigation at Weightmans LLP and can be contacted on 0151 242 6866 or peter.wake@weightmans.com. Ben Daniel is Head of Employment, Pensions and Immigration at Weightmans LLP and can be contacted on 0113 213 4054 or ben.daniel@weightmans.com. If you would like to discuss any of the issues raised in this update, please do not hesitate to contact Peter or Ben, or speak to your usual Weightmans advisor.