The law states that a settlement agreement is valid if it relates to the “particular complaint”. The Court of Session has held in Bathgate v Technip Singapore PTE Ltd that, as the settlement agreement related “to the particular complaint”, Mr Bathgate could not pursue his claim even though he was not aware that the complaint existed at the time of signing the agreement.
Basic facts
Mr Bathgate, who had worked for many years as a Chief Officer, was made redundant in January 2017. He signed a settlement agreement which stated, among other things, that he could not bring a long list of tribunal claims (including age discrimination) against the company.
Clause 6.2 stated that the waiver applied “irrespective of whether or not, at the date of this Agreement, the Employee is or could be aware of such claims or have such claims in his express contemplation (including such claims of which the Employee becomes aware after the date of this Agreement in whole or in part as a result of new legislation or the development of common law)”.
Mr Bathgate understood from talks with his employer that his redundancy payment would consist of an “enhanced redundancy and notice payment” to be paid at the end of January and an “additional payment” to be paid in June 2017. When he was informed in June that he did not qualify for the additional payment because of his age, he lodged claims for direct and indirect age discrimination. The company argued that his claims were invalidated by the settlement agreement, among other things.
Relevant law
Section 147(3)(b) of the Equality Act states that a settlement agreement is valid if it relates to the “particular complaint”.
Tribunal and EAT decisions
Relying on the decision in Hilton UK Hotels Ltd v McNaughton, the tribunal agreed with the company that Mr Bathgate’s claims were covered by the settlement agreement. Although it was a future claim, it related to “the particular complaint” in the sense that it was identified within the agreement “in plain and unequivocal terms”.
The EAT disagreed, holding that the legislation did not permit waiver of a future claim (ELR 799). While the parties intended this result, the need for a qualifying settlement to “relate to the particular complaint” excluded these kinds of cases. In particular the agreement failed to identify the particular complaint because at the time it was signed, the alleged discrimination had not happened. The EAT distinguished Hilton Hotels as the circumstances giving rise to the claim in that case had occurred before the settlement agreement.
The company appealed, arguing that agreements under section 147 should be construed according to the same principles as any other contract. Here it was clear that the agreement was intended to cover claims of which the parties were unaware at the date of signing.
Decision of Court of Session
Allowing the appeal, the Court held that the legislative requirement for the contract to “relate to the particular complaint” did not mean that the parties had to be aware of the complaint at the time of the agreement.
However, as the statutory purpose of the legislation was to protect claimants from signing away their rights, an agreement could not just contain a generic expression such as “all statutory rights”. Instead, exclusions had to be more specific. The “particular complaint” in this case – age discrimination - had been specified in the agreement and was therefore excluded.
This was also the approach taken in Hilton Hotels which stated that a future claim of which an employee did not and could not have knowledge may be covered by a waiver where it is plain and unequivocal that this was intended.
Comment
The decision in Bathgate signals a return to a more certain position regarding the ambit of a settlement agreement. It confirms that provided potential claims are clearly identified in the agreement by reference to a generic description or the section of the relevant statute rather than a mere general waiver of all claims as a blanket approach, settlement agreements can be used to waive future claims. Whilst Bathgate is a Scottish case, and therefore not binding on tribunals in England and Wales, the law regarding settlement agreements is almost identical in Scotland and this decision is therefore likely to be highly persuasive in deciding future similar cases.