Claimant v City Council [2018] – 16 December 2018, His Honour Judge Bird

The claimant was precluded from bringing a personal injury claim in the county court following settlement of his Employment Tribunal claim.

Summary

The claimant was precluded from bringing a personal injury claim in the county court following settlement of his Employment Tribunal (“ET”) claim. The injury claim was held to be an abuse of process because the claimant had already compromised all available remedies.

Facts

The claimant was previously employed by the defendant. His employment ended in 2015. He commenced proceedings against the defendant in the ET on the grounds of discrimination. These proceedings were compromised via a payment to the claimant and pursuant to the standard terms of a COT3 agreement. At a later date, the claimant issued county court proceedings seeking damages for personal injury (psychiatric harm) and associated losses. The defendant successfully applied to strike the claim out as an abuse of process. The claimant appealed.

Appeal

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 ET proceedings, in fact he had not done so. Accordingly, he argued that his claim should be allowed to proceed. The appeal was dismissed by HHJ Bird. The judge agreed with the defendant 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.
  • The claim that was compromised was therefore “a claim for all recoverable compensation however described or characterised”.

Comment

This is an important judgment. If the claimant’s construction of the settlement had been accepted, other discrimination claims in the ET (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 ET claim, hence the following caution urged by the editors of Harvey on Employment law:

“Those acting for Claimants/potential Claimants should beware: In compromising a discrimination claim, the complainant’s right subsequently to pursue a personal injuries claim on the basis of the alleged discrimination is also likely to be curtailed, and professional advisers should be aware of this when considering the terms of any settlement”.

Weightmans acted for the Council in this case.

For further information about Weightmans LLP or to discuss any of the issues in this update, please contact Peter Wake, Partner on 0151 242 6866 or peter.wake@weightmans.com.

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