Challenging settlements in the ET

What was the case of Cole v Elders Voice?

In order to avoid a claim proceeding to the Employment Tribunal parties will often negotiate a settlement agreement through ACAS. This will usually provide for the employer to pay a sum of money in full and final settlement of claims and the employee to waive the right to bring any claim. In the case of Cole v Elders Voice, the employee wanted to challenge the validity of the settlement agreement and the question arose as to whether she could refer to the without prejudice negotiations which were privileged. 

What were the facts of the case?

Mrs Cole had settled her claims of unfair dismissal and discrimination. The agreement was with Elders Voice as she had TUPE’d to them from her previous employer Sanctuary. The agreement was stated to be in full and final settlement of the claims she may have against the employer or any of its associated companies. In response to Mrs Cole’s queries during negotiations about claims against Sanctuary, it was accepted that the agreement should stipulate that Sanctuary was not an associated company. 

What was the court's decision?

When Ms Cole discovered she could not later bring claims against Sanctuary it was held she should be allowed to go behind the agreement and refer to without prejudice material in support of her submissions that the position regarding her claims against Sanctuary had been subject to misrepresentation. A COT3 settlement agreement could be challenged on the same basis as any other agreement and as she was a litigant in person with no legal qualifications particular care had to be taken.