Settling for unknown future claims

The Court of Session has recently handed down its judgment in the case of Bathgate v Technip Singapore PTE Ltd which concerned whether a settlement agreement could be used to settle future unknown claims. 

The claimant was made redundant and left employment under a settlement agreement. After the settlement agreement had been signed, the respondent decided that it did not need to make an additional payment to the claimant, under a collective agreement, as he was over the age of 60. The claimant claimed age discrimination in relation to this decision.

Section 147 Equality Act 2010 allows claims for discrimination to be settled using a settlement agreement provided that the settlement agreement relates to the ‘particular complaint’. The tribunal concluded that the age discrimination claim had been settled by the settlement agreement, even though the act complained of only occurred after the settlement agreement had been signed. The Employment Appeal Tribunal disagreed and held that future unknown complaints could not easily be considered ‘particular complaints’, as they would not have occurred at the point that the agreement was signed. The point was appealed to the Scottish Court of Session.

The court held that the claimant’s age discrimination claim had been validly settled by the settlement agreement. The agreement stated that it constituted a full and final settlement of the claims that the claimant ‘intimates and asserts’ and listed various types of claims, including age discrimination. The agreement also included a general waiver of ‘all claims… of whatever nature (whether past, present or future)’.

The court stated that “a future claim of which an employee does not and could not have knowledge may be covered by a waiver where it is plain and unequivocal that this was intended”. In this case, the court held that “it was clear that the agreement was intended to cover claims of which the parties were unaware and which had not accrued”.