Ian Clifford v IBM United Kingdom Ltd

The Employment Appeal Tribunal dismissed the claimant's appeal against an Employment Tribunal decision striking out his disability discrimination claims. The ET had concluded that those claims were precluded by a 10 April 2013 compromise agreement which met the statutory prerequisites for a qualifying settlement agreement under the Equality Act 2010, in particular section 147(3), and that the claims in any event had no reasonable prospect of success. The EAT held that the Court of Session decision in Bathgate v Technip Singapore Pte Ltd [2023] CSIH 48, [2024] IRLR 326 – establishing that future discrimination claims can be validly compromised where the statutory conditions are satisfied – was cogent and applicable. The tribunal’s alternative strike-out on merits was also upheld: on the pleaded facts the comparator relied on for direct and indirect discrimination was flawed and the complaints about lack of salary reviews were inseparable from a disability plan benefit which conferred a substantial advantage, so did not constitute unfavourable treatment for the purposes of section 15 Equality Act 2010.

This appeal concerned disability discrimination claims (direct discrimination, indirect discrimination and discrimination arising from disability) which the Employment Tribunal struck out on two bases: (1) they were precluded by a 2013 compromise agreement and (2) they had no reasonable prospects of success. The claimant had been continuously absent from work through ill-health since 2008 and, following a grievance and appeal, was transferred into the respondent's Disability Plan and entered a compromise agreement on 10 April 2013. The agreement recorded transfer to the Plan, set disability payments (75% of on-target earnings) and contained a broad waiver of claims including discrimination under the Equality Act 2010, with limited carve-outs for future claims not connected to the grievance or the transfer to the Plan.

Nature of the claim / relief sought: the claimant sought to pursue claims under sections 13, 15 and 19 Equality Act 2010 (direct discrimination, discrimination arising from disability and indirect discrimination) alleging he was not given annual salary reviews or pay increases after transfer to the Plan; he also pleaded unlawful deductions/WTR claims (but those were not central to this appeal).

Issues before the EAT:

• Whether the ET was right to conclude the compromise agreement was a valid qualifying settlement agreement under sections 144 and 147 Equality Act 2010, in particular whether section 147(3)(b) was satisfied (the contract "relates to the particular complaint") when the complaint related to events after the agreement;
• whether the ET erred procedurally in striking out claims on grounds not squarely before it; and
• whether the discrimination claims had no reasonable prospect of success on their merits.

Court’s reasoning (concise): the EAT accepted that the waiver in the agreement covered the pleaded discrimination claims and that the statutory conditions for a qualifying settlement agreement were met other than the contested issue of section 147(3)(b). The EAT found Bathgate CoS persuasive and applicable: section 147 does not impose a temporal bar and a future claim may be validly compromised if the type of claim is clearly identified and the other safeguards are met. The tribunal therefore correctly concluded the claims were precluded. The EAT further concluded, on the claimant’s case taken at its highest, that the discrimination complaints lacked reasonable prospects of success. The comparator relied upon for direct discrimination was inappropriate given statutory comparison rules; the indirect discrimination claim was wrongly framed because it complained of differential treatment rather than the application of a provision, criterion or practice to both groups; and the section 15 complaint could not properly isolate the absence of salary reviews from the overall, advantageous Disability Plan under which the claimant received a substantial benefit.

The EAT dismissed the appeal and refused permission to amend grounds in the manner sought.

The appeal is dismissed. The EAT held that the 10 April 2013 compromise agreement validly precluded the claimant’s disability discrimination claims because it satisfied the statutory prerequisites for a qualifying settlement agreement under the Equality Act 2010, including the requirement that the contract relate to the particular complaint. The EAT also upheld the Employment Tribunal’s alternative conclusion that, taking the claimant’s pleaded case at its highest, the discrimination claims had no reasonable prospect of success because the comparator used was flawed, the indirect discrimination claim was improperly framed and the alleged unfavourable treatment could not be isolated from the overall benefit conferred by the Disability Plan.

Appeal from the Employment Tribunal (Reading Employment Tribunal) decision of Employment Judge Housego promulgated 24 April 2023 (strike out of disability discrimination claims). No further appellate history given in the judgment.