Can an employee still claim after agreeing a COT3 tribunal settlement?

Yes, maybe. Schools should be aware that an unclear COT3 settlement agreement could allow an employee to bring future employment tribunal claims.

COT3 agreements
An ACAS COT3 agreement is used to settle existing employment tribunal claims. The COT3 will only successfully bar those claims which are specifically set out in the agreement. Schools which enter into a COT3 or, indeed, any settlement agreement should aim to ensure that the wording is clear enough to bar any future claims which could be brought by the employee.

The facts of the case
Mrs Brindley works for the Department of Work and Pensions (DWP). She brought a disability discrimination claim (Claim 1) in the Employment Tribunal relating to a final written warning under the attendance management policy (AMP) issued in April 2014. Claim 1 was settled through a COT3 in December 2014. The COT3 specifically settled Claim 1 and all other "Relevant Claims [that is claims relating to Mrs Brindley's employment with the DWP] arising from the facts of the Proceedings up to and including the date of this Agreement".

Mrs Brindley brought a further disability discrimination claim (Claim 2) in June 2015. Claim 2 related to another final written warning under the AMP issued to Mrs Brindley in December 2014.

The decision
An employment tribunal found that Claim 2 could be brought by Mrs Brindley as the COT3 specified Claim 1 and all other Relevant Claims "arising from the facts of the Proceedings". The employment judge determined that this phrase referred to any claims arising from the first final written warning and that it could not reasonably be taken to include the second final written warning. The EAT agreed.

Comment
Schools may decide to enter into a COT3 or settlement agreement in an attempt to draw a line under an employee's complaint or claim. The advantage of this course of action will usually be the supposed certainty that the employee cannot bring employment-related claims in future. However, this case highlights the potential for continued uncertainty where future claims are not properly specified. Particular care will be needed where, as in this case, schools are dealing with the claims of an on-going employee.

We recommend that legal advice is taken on the wording of both ACAS COT3 agreements and settlement agreements.

EAT case report: Department for Work and Pensions v Brindley (Practice and Procedure: Compromise) [2016] UKEAT 0123_16_1711 (17 November 2016)

Additional matters
All schools must note that:

• Settlement payments exceeding £50,000 must be cleared with EFA.  Settlement payments of any amount must be approved by the directors of the academy trust as being in the trust's interests.
• Following new rules expected to come into effect early this year, the Secretary of State will have power to cap settlement payments at £95,000.