Settlements can only be ‘in the day’

In Bathgate v Technip UK Ltd and Ors, the EAT considered what exactly could be compromised by settlement agreements.

This case involved a long service expatriated employee who took voluntary redundancy on his return to an onshore role. The voluntary redundancy term agreed in January included a settlement agreement concerning redundancy terms and supplementary payments calculated using a collective agreement. Shortly after, the employer came to the view that the collective agreement did not entitle Mr Bathgate to the supplementary payment on account of his age namely that he was over 61 at the time of his dismissal. This decision was not communicated to the Claimant until after June of that year.

The employee brought a claim for age discrimination under the Equality Act 2010 relating to these payments. The claim was treated as post employment discrimination but failed at first instance as the agreement specifically included ageneral waiverof ‘past present and future claims’. On appeal, the EAT held that, while s147 EqA refers to settlement agreement referring to a ‘particular complaint’, it cannot have been the intention of Parliament that S.147 EqA should only be available in respect of complaints that have already arisen between the parties, particularly where the basis of the claim arose after the signing of the settlement agreement. In this case Mr Bathgate signed away his right to sue for age discrimination before he knew whether he had a claim or not. It is true that this introduces uncertainty into settlement agreements, where there is a desire to avoid future claims at the end of the employment relationship permanently.