Case Study: Using a COT3 Agreement to Settle an Employment Tribunal Claim

Summary

How an Employment Law caseworker obtained compensation for a woman made redundant whilst on maternity leave using a COT3 Agreement.

The situation

Amy was employed as a senior manager for an international holiday firm. She went on maternity leave in August 2015 with an informal agreement with her manager that she could return and work part-time after four months. In September, the company announced multiple redundancies but Amy was reassured that she was not affected.

A month later, Amy was told that her job might be moved to another office in Europe. She was given vague and contradictory information for weeks but was then told that if they could not find her another suitable job, she would be made redundant. She was unhappy as all of the other three people doing the same job had been retained. She attended one meeting about a possible vacancy but did not feel the post was suitable. At this point she lost faith in the company and told them to process her redundancy.

Amy was made redundant at the end of her notice period in March 2016. She found another job in May.

What Martin Searle Solicitors did

We advised Amy that a woman at risk of redundancy whilst on maternity leave should be given priority for any suitable alternative employment within the group. As long as she was capable of doing these roles, she should have been first in line for jobs that were given to her colleagues.

We helped Amy draft a grievance and then an appeal complaining that she had been discriminated against because she was on maternity leave. Her grievances were not upheld apart from an agreement to pay her statutory maternity pay after her employment had ended.

We submitted an Employment Tribunal claim for maternity leave discrimination and automatic unfair dismissal on the basis that Amy should have been placed in a pool for redundancy with her colleagues and given priority for any vacancies.

When the employer submitted their defence, it became apparent that Amy’s closest colleague had been promoted to a new position in the week after their Manager had been told that Amy’s job was at risk of redundancy. The employer claimed that it was reasonable to deal with Amy separately because she worked in a different part of the business and that Amy would not have been capable of doing the new job. Amy, however, was confident that she had the necessary skills and experience.

Under the Employment Tribunal process, we established that both posts previously held by Amy and her colleague had been deleted which strengthened the argument that Amy should have been offered the promotion when her job was known to be at risk of redundancy. We also discovered what the colleague was being paid, following her promotion, which increased the value of Amy’s claim.

The result

Because Amy had been able to get another job fairly quickly, her loss of earnings were not substantial. Her potential compensation was based on the amount the Tribunal would be prepared to award for injury to feelings. This is very difficult to predict as this is at the Tribunal’s discretion.

The case was listed to be heard over a five day hearing. However the employer agreed to participate in Judicial Mediation. This is a process that takes place within the Tribunal system where an Employment Judge mediates to help the parties agree a settlement. Usually this agreement is recorded on an Acas COT3 form.

In the week before the mediation was due to take place the employer’s solicitors sent us proposed wording for the COT3 that included a penalty clause under which, if Amy breached a confidentiality clause, any compensation would be repayable as a debt.

We prepared a schedule of loss which pitched Amy’s losses at £19,000 including (an optimistic) £12,000 for injury to feelings. At the beginning of the mediation, the employer actually reduced the amount they were willing to offer to £4,500 because of the expenses they were incurring from attending Judicial Mediation. At the end of the day, we were able to agree £10,000 in compensation, a favourable reference that would be provided to any prospective employer and the removal of the penalty clause. This meant that Amy received more than 50% of what she could hope to win without having to face the stress and uncertainty of whether she would win a Tribunal hearing, four months later.

If your employer has made an offer of settlement, we can help. Contact us to find out more on 01273 609911, or email info@ms-solicitors.co.uk to find out more.