Adrian Arvunescu v Quick Release (Automotive) Ltd

The Employment Appeal Tribunal considered (i) whether the claimant's victimisation complaint had been correctly characterised and was capable of amounting to a breach of section 112 of the Equality Act 2010 (liability for knowingly helping another to commit an act of discrimination) and (ii) whether the claimant's claim was barred by a COT3 settlement agreement. The tribunal erred in striking out the victimisation complaint as having no reasonable prospect of success because the pleaded facts could amount to the respondent having "knowingly helped" the German company to refuse to appoint the claimant. However, the COT3 was drafted in wide terms and, on an objective construction, covered claims arising directly or indirectly out of the claimant's employment with the respondent, including the particular section 112 claim pleaded on the facts of this case.

Background and procedural posture:

• The claimant, a former employee, had earlier brought a race discrimination claim against the respondent which was compromised by a COT3 signed on 1 March 2018. The claimant later presented a new claim in May 2018 alleging victimisation after being rejected for a role with a German company closely connected to the respondent.
• The Employment Tribunal struck out the new claim on two bases: that it was compromised by the COT3 and that the victimisation complaint had no reasonable prospect of success.
• The claimant appealed. Permission was granted in relation to two grounds: (1) the tribunal erred in striking out the victimisation claim as having no reasonable prospect of success because the pleaded case, in substance, alleged the respondent had instructed, caused or induced the German company's decision (recharacterised on appeal as a section 112 claim); and (2) the tribunal erred in concluding that the COT3 precluded the victimisation claim.

Nature of the claim / relief sought: The claimant sought to pursue a victimisation claim under the Equality Act 2010 arising from rejection for a job with a German company; on appeal the claimant advanced that the pleaded facts could amount to a claim under section 112 (knowingly helping another to contravene Part 5).

Issues the court framed:

• Whether the Employment Tribunal should have identified and treated the pleaded complaint as a potential claim under section 112 of the Equality Act 2010.
• Whether, on the facts pleaded and disclosed documents, the victimisation claim under section 112 had no reasonable prospect of success and thus could properly be struck out.
• Whether the COT3 settlement agreement, construed objectively, precluded the claimant from pursuing the section 112 claim.

Court's reasoning and outcome on those issues:

• On classification and strike-out: the EAT held that a careful analysis of the pleaded facts showed the claimant was effectively alleging the respondent had some involvement in the decision of the German company and that those facts could properly be the basis of a section 112 claim. The tribunal was wrong to conclude the claim was wholly fanciful: there was documentary material and pleaded circumstances (close links between the companies, communications about the claimant and a change of attitude after the protected act) which could, if proved and inferred at trial, support a finding that the respondent knowingly helped the German company to victimise the claimant.
• On the COT3: the EAT concluded the settlement was drafted very widely and, objectively construed, did cover claims "arising directly or indirectly out of or in connection with" the claimant's employment, including the particular section 112 claim as pleaded, because a necessary factual ingredient of that claim was the protected act arising from the claimant's employment.

Subsidiary findings: the tribunal had applied the correct legal principles for strike-out but misapplied them to the pleaded facts; the COT3 language was wide enough to effect a comprehensive release.

The appeal was allowed in part. The Employment Appeal Tribunal held that the Employment Tribunal erred in striking out the victimisation complaint as having no reasonable prospect of success because the pleaded facts could support a claim under section 112 of the Equality Act 2010 (knowingly helping another to commit an act of discrimination). However, the COT3 settlement agreement was objectively construed as wide enough to cover the claimant's section 112 claim on the pleaded facts, so the claim remained barred by the settlement.

The matter arose from an Employment Tribunal decision (striking out the claimant's May 2018 claim); the Employment Tribunal judgment was sent to the parties on 8 October 2019 and was heard by Employment Judge Wyeth at Watford. Permission to appeal on two grounds was granted by HHJ Auerbach on 17 February 2021. The appeal was determined by the Employment Appeal Tribunal in Arvunescu v Quick Release (Automotive) Ltd [2022] EAT 26.