Settlement of future claims: EAT in England and Wales follows Court of Session’s decision in Bathgate

In Clifford v IBM United Kingdom Ltd [2024] EAT 90 the EAT held that:

• future claims can be waived in a settlement agreement so long as appropriately clear language is used;
• this is the case irrespective of whether it is a ‘clean break’ end of employment situation or the parties remain in a continuing employment relationship.

The EAT in England and Wales endorsed and followed the Court of Session’s decision in Bathgate v Technip Singapore [2024] IRLR 326. At the heart of the decision is the reasoning that the purpose of EqA 2010, s 147(3), and in particular subparagraph (b), is to prevent an employer being able to use a blanket waiver in relation to which an employee could sign away their rights without appreciating the significance of what they were doing. There are, however, no temporal limitations on what kind of claims can be waived. As such, EqA 2010, s 147(3) regulates how the parties enter into a statutory settlement agreement, rather than constraining what kinds of claims can be settled.

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