Ian Clifford v IBM United Kingdom Ltd

A qualifying settlement agreement under section 147 of the Equality Act 2010 may validly settle future discrimination claims. The agreement must clearly identify the type of claim covered, but section 147(3)(b) imposes no temporal requirement that the complaint, or its factual basis, already exists when the agreement is made.

For disability discrimination, the treatment must be identified in its proper factual context. A claimant cannot isolate a less advantageous feature of an integrated disability-benefit scheme where the scheme as a whole provides the benefit available because of disability. A complaint that the benefit could have been more generous is not thereby unfavourable treatment. Indirect discrimination also requires a common provision, criterion or practice applied to both protected and comparator groups.

The claimant had been absent through ill health since 2008. Following a grievance, he entered a compromise agreement with his employer in April 2013 and transferred to its Disability Plan. The agreement waived specified disability-discrimination claims, including claims not then in the parties’ contemplation, subject to exceptions which did not cover matters connected with the grievance or transfer to the Plan.

In 2022 he brought direct discrimination, discrimination arising from disability and indirect discrimination claims. He complained that Disability Plan payments had not received annual reviews or increases comparable to those for active employees. The Reading Employment Tribunal struck out the claims as precluded by the agreement and as having no reasonable prospects of success.

The claimant appealed, principally contending that unknown future claims could not meet the requirement in section 147(3)(b) of the Equality Act 2010 that a settlement agreement relate to the particular complaint.

1. Appeal dismissed. The Employment Tribunal was correct that the compromise agreement precluded the pleaded disability-discrimination claims. Its language clearly covered claims arising from employment, whether or not contemplated when the agreement was made, and specifically identified disability-discrimination claims. The exception for future claims did not apply because these claims were connected with the earlier grievance and arose from transfer to the Disability Plan.

2. Section 147(3)(b) of the Equality Act 2010 does not prevent a qualifying settlement agreement from compromising future claims. The requirement that the contract relate to the particular complaint protects employees against blanket waivers by requiring sufficient identification of the type of claim. It does not require the complaint or its factual basis to have arisen when the agreement was signed. The Court followed the cogent and indistinguishable reasoning in Bathgate v Technip Singapore Pte Ltd [2023] CSIH 48.

3. The Tribunal had also struck out the discrimination claims on their merits without giving the claimant a reasonable opportunity to address that basis for strike-out, contrary to rule 37(2) of the Employment Tribunals Rules of Procedure. That error was immaterial because the claims had no reasonable prospects of success in any event.

4. The direct-discrimination comparison with active non-disabled employees was untenable. Under section 23, a comparator must have the claimant’s relevant abilities and circumstances apart from disability. The indirect-discrimination claim was additionally defective because it alleged differential treatment of disabled Plan members, not a common provision, criterion or practice applied to both groups.

5. The section 15 claim impermissibly isolated the lack of annual reviews from the Disability Plan. The discretionary review arrangement was an integral feature of a scheme providing long-term payments because the claimant’s disability made him eligible. Viewed as a whole, the treatment was not unfavourable merely because the benefit might have been more generous. The Court therefore dismissed all grounds of appeal.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 90.
• Employment Tribunal, Reading: Employment Judge Housego struck out the disability-discrimination claims on 24 April 2023 as precluded by the compromise agreement and as having no reasonable prospects of success.