You would think that in the twenty-plus years since they were first introduced as an alternative to the Acas COT3, all that could be said about the law relating to settlement agreements would have been said. However, along now comes the Scottish Employment Appeal Tribunal in Bathgate –v- Technip UK Limited and Others with a new look at exactly how far those waivers can go.
Section 147(3)(b) ERA requires a valid settlement agreement to identify “the particular claim” being waived. Acas suggests that there are some 97 separate statutory claims which can be made in the Employment Tribunal. That is why many settlement agreements contain a great long list of potential causes of action, whether they have anything to do with the present case in question or not – in that way, goes the thinking, there can be no question but that a particular head of claim has been identified, even if it is maternity rights for men, minimum wage claims for CEOs and some frankly specialist-interest affairs like working time on hovercraft for almost everyone.
The question in Bathgate is whether that requirement to identify the particular claim being waived excludes claims in relation to matters which have not yet arisen and/or of which the employee is unaware. Mr Bathgate was made redundant and signed a settlement agreement which referred to the possibility of an enhanced payment subject to employer discussions under a collective agreement with the relevant trade union for those...
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