Clifford v IBM United Kingdom Ltd - disability discrimination

June 25th, 2024
Jack Posnett
Employment

Clifford v IBM United Kingdom Ltd – disability discrimination

Employment solicitor, Lawrence Ofori looks at the case of Clifford v IBM United Kingdom Ltd and asks the question; was an employment tribunal wrong to strike out a claimant’s claims for disability discrimination, on the basis that the claims were barred by a settlement agreement?

Brief facts

The Claimant (Mr Clifford) is employed by the Respondent (IBM/the company), which provides IT, technology, hardware, software, new business solutions and services. He began working for the company on 1 July 2001 but unfortunately Mr Clifford was continuously absent from work since 19 September 2008 due to ill-health and had not worked since.

In 2012 he raised a grievance relating to various issues including IBM’s failure to transfer him to the company’s Disability Plan (the Plan). Following the outcome of his grievance and related appeal, IBM agreed that the claimant would be placed on the Plan and receive disability salary payments at a certain level with the parties entering a settlement (compromise) agreement.

The terms of the Plan confirmed that any increase in these payments would be discretionary. Further under the terms of the settlement agreement, the claimant waived away his right to bring various specified claims, including disability discrimination claims (irrelevant of whether the claims were known by the parties at the date the agreement was signed).

The claims

He subsequently issued his claim in February 2022. It was accepted that he is a disabled person under the Equality Act 2010 (‘the Act’).

The Claimant claimed that his absence from work; being placed on the Plan, and his inability to perform his duties was ‘something arising’ from his disability. Mr Clifford alleged if he had not been disabled, he would be able to continue to perform his role, he would have had an annual salary review and annual salary increases each year, from 2013, and he would have been paid in full for his contractual annual leave entitlement.

The Claimant also brought the following additional claims:

a claim of direct discrimination: on the basis that by refusing to review the payments he received under the Plan annually; IBM had treated him less favourably than it would have treated an employee without a disability.

indirect discrimination: in that IBM’s practice (not to review the payments he received from the Plan), put disabled employees at a particular disadvantage when compared to their non-disabled comparators.

Unlawful deductions from wages: in relation to non-payment of annual leave.

Employment Tribunal Decision

Following a preliminary hearing, the tribunal struck out the Claimant’s claim on the basis that it was prohibited by the settlement agreement and on that basis the claim had no reasonable prospects of success.

Employment Appeal Tribunal

Appeal dismissed. The EAT held that the Claimant’s claim fell within the terms of the waiver detailed in the settlement agreement, whether or not they were known by the parties at the time the agreement was entered into. As a result, it was the EAT’s view that the only issue which should be determined was whether the agreement complied with the requirement in s.147 of the Act.

Key takeaways

The Clifford case followed the decision by the Scottish Supreme Court (Court of Session), in Bathgate v Technip Singapore Pte Ltd [2022] EAT 155 and serves a useful reminder that the purpose of a settlement agreement is to achieve a clean break between the parties.
Settlement Agreements can compromise future claims either known by the parties at the time the agreement is entered into or at least if the future complaint is the subject of existing facts and circumstances known to the parties.
Settlement Agreements can prohibit future claims if the safeguards set out in s.147 of the Act are met.
Further, s. 147 (3) regulates how the parties enter into a legal settlement agreement, rather than limiting the kinds of claims that can be settled by such an agreement.
Crucially, s. 147 (3) requires the person entering into the settlement agreement to have received advice from an independent adviser about the agreement’s terms and effect (including its effect on the Claimant’s ability to pursue the claim before an employment tribunal), therefore an employee / complainant will be unable to argue they signed away their rights without appreciating the significance of what they were signing.
Blanket waivers will not be valid unless there is a sufficient description of the claims waived.
Settlement Agreements can compromise future claims even if the employment relationship continues or ends.