Employment tribunal and court judgments | November 2022

Unknown future claims cannot be waived under settlement

In Charles Melvin Bathgate v Technip UK Limited & Ors [2022] EAT 155, the Employment Appeal Tribunal (EAT) in Scotland held that a settlement agreement cannot waive unknown future claims.

In this case, the Claimant (a seafarer) instigated proceedings for age discrimination based on the settlement agreement he signed upon his voluntary redundancy. The agreement referred to the possibility of an enhanced payment subject to employer discussions under a collective agreement for those under the age of 61. The Employment Tribunal held the claim had been compromised by the settlement of unknown future claims.

Referring to case law and Section 147(3)(b) of the Equality Act 2010 (which provides that valid settlement agreements must relate to a 'particular complaint'), the EAT overturned the Tribunal's earlier finding. It found that a settlement agreement cannot compromise unknown future claims. Lord Summers also commented that: 'The Act uses the definite article in combination with the words 'particular complaint'. I consider this does not permit clauses that list a series of types of complaint by reference to their nature or section number.'

Although the Claimant was allowed to proceed with his post-termination discrimination claim, his claim ultimately failed as his seafarer employment was excluded from the remit of the Equality Act. Nevertheless, the EAT's rationale is still important – be wary of general waivers that merely reference all claims of any nature or ones that reference their legislation/nature.

'Vanishing' dismissals upon successful appeals

The EAT, in Marangakis v Iceland Foods Ltd [2022] EAT 161, found that an original dismissal 'vanished' after an employee successfully appealed their dismissal and, therefore, there was no claim for unfair dismissal.

The claimant, Mrs Marangakis, was dismissed for gross misconduct on 24 January 2019. She subsequently appealed that decision using the Respondent's disciplinary procedure requesting to be reinstated. Following an appeal hearing, the claimant emailed the Respondent stating 'I believe the mutual trust … has been broken' confirming that she now did not want to be reinstated. At the reconvened appeal hearing in March 2019, the claimant reiterated not wanting to work for the Respondent anymore, instead requesting an apology and compensation.

In April 2019, the claimant's appeal was successful, and she was reinstated with continuity of service and backpay. However, given her stance on not wanting her job back, the claimant failed to attend work and was subsequently dismissed in July, she then brought a claim for unfair dismissal in relation to her first dismissal however the Respondent argued that the first dismissal had fallen away as the claimant had been reinstated. The Tribunal noted that the claimant had not withdrawn her appeal, and the claimant also confirmed this.

Applying the case of Folkestone Nursing Home Ltd v Patel [2018] EWCA Civ 1689, [2019] ICR 273 which found that the only way for an employee to 'escape' a successful appeal in law is to withdraw their appeal (the subjective intentions of the employee are not relevant). The Tribunal in Marangakis found that Patel gave it the relevant authority to dismiss the claimant's claim.

The claimant appealed to the EAT on the basis that having said she did not want to work for the Respondent again, they were effectively objectively withdrawing her appeal. In its defence, the Respondent argued that the Tribunal had held as a matter of fact that the claimant had not withdrawn her appeal. The EAT agreed with the respondent and concluded that the claimant could have explicitly stated that she was withdrawing her appeal and ceased to participate in the appeal therefore the Tribunal was correct to hold she had indicated a decision to withdraw from the appeal.

The takeaway from this case, is that if an employee withdraws their appeal, they will be able to (if they have more than two years' service) bring a claim for ordinary unfair dismissal. However, if such withdrawal of an appeal is not communicated to the employer during the appeal process, and an employee is reinstated, that dismissal will 'vanish'.