The Employment Appeal Tribunal (EAT) has held in Clifford v IBM that an employment tribunal was right to strike out a claimant's claims for disability discrimination because they had been precluded by a settlement agreement.
Mr Clifford was employed by IBM and, from September 2008 onwards, was continuously absent from work due to ill health. He brought a grievance against IBM in which he complained, amongst other things, about IBM's failure to transfer him to its disability plan. Following the grievance outcome the parties entered into a settlement agreement in April 2013. The agreement provided that Mr Clifford would move to the disability plan while remaining in IBM's employment, and receive disability salary payments. He waived the right to bring various specified claims (including a claim for disability discrimination), whether or not they were or could be in the contemplation of the parties at the date of the agreement. There was an exception in respect of future claims, but this did not apply to matters connected to his grievance or arising from his transfer to the disability plan.
A few years later Mr Clifford brought disability discrimination claims against IBM, arguing that since he had been transferred to the disability plan, he had not had an annual salary review, his salary had not been increased and his annual leave payments had been at a reduced rate compared to employees not on the disability plan. The tribunal struck out his claims on the basis that the settlement agreement precluded them.
The EAT dismissed the appeal, holding that the pleaded claims fell within the terms of the settlement agreement waiver. The waiver covered future discrimination claims connected to Mr Clifford or arising out of his transfer to the disability plan, whether or not they were contemplated by the parties. In coming to its decision the EAT referred to the Court of Session's decision in Bathgate v Technip Singapore PTE Ltd and agreed with the Court's analysis that there was nothing in the relevant statutory language preventing the settlement of future claims provided that appropriately clear language is used. There was nothing, in the EAT's view, that distinguished the Bathgate case from Mr Clifford's case. Both of them related to future claims that had not arisen at the time the settlement agreement was signed. Although Mr Bathgate's employment had ended, unlike Mr Clifford's which had continued (though in an inactive state), this did not affect the EAT's decision.
Take note: This decision will come as a relief to employers. The Court of Session's decision in Bathgate was not technically binding in England and Wales, but the EAT chose to follow it. Employers will now be able to approach the waiver of unknown future claims in a settlement agreement with more confidence. However, in order to waive such claims it is important to ensure they are clearly identified and that the waiver is being given in relation to any of the identified claims that may arise in future.
