Bathgate v Technip UK Ltd and others

The Employment Appeal Tribunal considered (i) whether a settlement agreement dated 29 January 2017 was a qualifying settlement agreement under section 147 of the Equality Act 2010 and therefore capable of preventing the claimant from pursuing an age discrimination complaint, and (ii) whether the tribunal had jurisdiction to hear a post‑employment age discrimination complaint by a seafarer who had worked largely outside United Kingdom and EEA waters. The court held that section 147(3)(b) requires that a settlement "relates to the particular complaint" in the sense of a complaint that has already arisen or is a known complaint capable of being asserted; Parliament did not permit settlement of unknown, future complaints by general or rolled‑up waivers. Accordingly the agreement did not comply with section 147 and could not bar the claimant’s age discrimination claim on that statutory basis. However, the court held that section 81 and the Regulations exclude from the scope of Part 5 persons who worked wholly outside UK and EEA waters on a foreign‑flagged ship, and that section 108 measures post‑employment rights by reference to the rights which existed during employment; because the claimant had no right to bring the Part 5 claim while employed, he acquired no such right after employment. The cross‑appeal on jurisdiction was allowed and the claim was dismissed.

Background and parties: The claimant, employed from 1997 to 31 January 2017 as a chief officer who worked for most of his career on vessels that sailed outside UK and EEA waters (notably the Bahamas‑registered Deep Blue), brought a complaint under the Equality Act 2010 alleging direct and/or indirect age discrimination when an additional pension payment was not paid because he was aged 61. The respondents were the employer group. The claimant had accepted a voluntary redundancy agreement on 29 January 2017 which included general and specific waivers.

Procedural posture: The Employment Tribunal held the claimant had settled his potential discrimination claims by the agreement and that it had jurisdiction to hear the complaint. The claimant appealed the ET’s finding about the effectiveness of the settlement under section 147; the respondents cross‑appealed the ET’s conclusion on jurisdiction under sections 81 and 108 and the applicable Regulations. A preliminary hearing had earlier excluded the common law point about contractual settlement efficacy.

Nature of claim and relief sought: The claimant sought tribunal redress for age discrimination (payments withheld because of age) under the Equality Act 2010 (Part 5 and, as this was post‑employment conduct, section 108). He sought a determination that the respondent’s refusal to make the Additional Payment contravened the Act.

Issues framed:

• Whether the Agreement was a qualifying settlement agreement under section 147(3)(b) of the Equality Act 2010 such that it related to "the particular complaint" and therefore lawfully prevented the claimant from pursuing the age discrimination claim.
• Whether the Employment Tribunal had jurisdiction to hear the claimant’s post‑employment claim given the territorial and ship‑registration exclusions in section 81 and the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 and whether section 108 could confer post‑employment rights that did not exist during employment.

Court’s reasoning and outcome on issues: On the settlement issue the EAT held that the statutory phrase "the particular complaint" contemplates a complaint that has already arisen or at least a known complaint capable of being asserted; Parliament intended to restrict the scope of settlements under section 147 and did not permit the settlement of entirely unknown future complaints by general, rolled‑up waivers. The Court of Appeal authority in Hinton was treated as authoritative and Lunt and related EAT authorities supported the conclusion that blanket compromises will not do. Although common law principles (as in Howard) permit contracting out of unknown claims, those contract‑law freedoms cannot circumvent the statutory requirements of section 147. On jurisdiction the EAT held that section 81 and the Regulations properly interpreted exclude persons who worked wholly outside UK and EEA waters on a foreign‑flagged ship from Part 5; section 108 only permits post‑employment claims if the conduct would have contravened the Act had it occurred during the employment relationship, so a former employee cannot acquire greater rights after employment than he possessed during employment. The cross‑appeal was allowed and the claim dismissed.

Appeal allowed in part. The claimant’s appeal on the s.147 issue was allowed: the settlement agreement did not comply with section 147(3)(b) of the Equality Act 2010 because it did not relate to a "particular complaint" already arisen or known and so could not bar the age discrimination claim. The respondents’ cross‑appeal on jurisdiction was also allowed: the tribunal lacked jurisdiction because s.81 and the Regulations exclude the claimant’s post‑employment claim and s.108 does not confer rights greater than those available during employment; accordingly the claim was dismissed.

The claimant appealed an Employment Tribunal decision that had held his settlement agreement barred his age discrimination claim and that the tribunal had jurisdiction to hear the claim. The respondents cross‑appealed the ET’s jurisdictional finding. The EAT heard the appeal and cross‑appeal and delivered the decision in [2022] EAT 155.