The EAT has held in Arvunescu v QRA Ltd that, having agreed a COT3 via ACAS which expressly barred him from bringing future claims against his former employer, Mr Arvunescu could not bring a claim of victimisation against the company for allegedly interfering in the recruitment process of its German subsidiary.
Mr Arvunescu, a Romanian national, started work at QRA Ltd on 6 May 2014, but was dismissed a month later. He brought tribunal proceedings for race discrimination which were subsequently settled via an agreement known as a COT3 on 1 March 2018.
The second paragraph of the agreement stated that the payment being made to him was “in full and final settlement of all or any … claims … of any kind … arising directly or indirectly out of or in connection with the claimant's employment with the respondent, its termination or otherwise”, including any claims that he did not know about at the date of the agreement.
Just before he agreed, Mr Arvunescu applied for a similar job with a company based in Germany which was a wholly-owned subsidiary of QRA Ltd. His request for a reference was refused and his application for the job in Germany was rejected. He brought a new claim against QRA Ltd for victimisation, among other things, alleging that he was turned down for the job in Germany because of his earlier claims against them.
Rejecting his complaint, the employment judge held that the wording in the agreement spelled out “without any ambiguity or doubt” that, once he agreed it, any future claims he wanted to bring against QRA Ltd would be compromised. As the tribunal pointed out, Mr Arvunescu must have known that he would want to bring the victimisation claim before he agreed to the COT3 wording. Instead of negotiating an exception to the terms, however, he accepted it in its entirety.
The judge then struck out the claim on the basis that, as there was no evidence that QRA Ltd had any involvement in the decision by the German company to refuse to progress his application, his claim did not have a reasonable prospect of success. Indeed, it was “fanciful” to suggest that liability for the refusal rested with anyone other than the subsidiary.
Mr Arvunescu appealed against the tribunal’s decision to strike out his claim and the conclusion that he was barred from bringing it under the wording of the COT3.
The EAT allowed the appeal in part, holding that the tribunal judge was wrong to conclude that the victimisation claim had no reasonable prospect of success. His complaint that QRA Ltd had engineered his rejection from the post with the German company could potentially fall within the scope of section 112 of the Equality Act 2010, which applies when one person “knowingly helps” another to do an act of discrimination. In this case, QRA Ltd knew that Mr Arvunescu was applying to the German company; the person he was in contact with at QRA Ltd knew the relevant contact at the German company; and there had been discussions between the two companies about his recruitment.
However, it dismissed his appeal against the tribunal decision that his claim was barred by the COT3 as it applied to any claims arising directly or indirectly out of or in connection with his employment with QRA Ltd. Although a claim under section 112 did not necessarily require a link with employment, it was clear from the facts in this case that the complaint had a sufficient link with his past employment with QRA Ltd to fall within its terms.
This case demonstrates the importance of carefully considering the wording of COT3 agreements, particularly where the waiver is very wide.