'knowingly helping' another to breach the Equality Act

Employment Appeal Tribunal rules that an employee’s claim that his former employer had ‘engineered’ the rejection of his job application by a connected company as he had brought discrimination proceedings while in previous employment gave rise to a claim creating liability for ‘knowingly helping’ another to breach the Equality Act

The Claimant was employed in the UK by QRA Ltd between March and May 2014. Following termination of his employment, he brought proceedings against QRA Ltd for race discrimination. That claim was settled by way of a COT3 settlement agreement entered into on 1 March 2018. The COT3 purported to be full and final settlement of all claims ‘arising directly or indirectly out of or in connection with’ the Claimant’s employment with QRA Ltd or its termination, even if the Claimant was unaware of any such claim at the date of the agreement.

In early 2018, the Claimant applied for a job with a company based in Germany that was a wholly owned subsidiary. A HR representative (HR rep) of QRA Ltd provided the Claimant with the name of the person to contact in the German Company but said that she (the HR rep) had no influence over the recruitment process. In February 2018, the German company rejected the application by email so in May 2018, the Claimant started a new claim of victimisation against QRA Ltd arguing that, given the close connection between QRA Ltd and the German company, QRA Ltd was somehow responsible for the failure of his application and this was because of his earlier discrimination claims.

An employment judge however found that the victimisation claim had been settled by the COT3. The Claimant knew about the claim before he signed the COT3 in March 2018, having been refused a reference by the HR rep in January 2018 and received the rejection email on 19 February 2018. The judge ruled that the claim should be struck out in any event, as it was ‘fanciful’ to suggest that QRA Ltd were responsible for the German company’s rejection of the application. There was no evidence to support a claim that QRA Ltd had any relevant influence over the decision.

The EAT allowed the Claimant’s appeal in relation to the strike-out decision, holding that the employment judge had been wrong to conclude that the victimisation claim had no reasonable prospect of success. The claim was that QRA Ltd had engineered his rejection by the Germany company and this potentially gave rise to a good claim under the Equality Act, which imposes liability on anyone who ‘knowingly helps’ another to contravene the Act.

The EAT went on to state that it could not be said that the claim was ‘fanciful’ and the high hurdle for striking out a discrimination claim had not been cleared, noting that:

1.    There was no dispute that he had done a protected act;

2.    There was clearly some connection between QRA Ltd and the German company;

3.    There was evidence that the HR rep knew the German company reasonably well as she was able to direct the Claimant to the person who dealt with recruitment by her first name;

4.    There was some evidence that discussions about the Claimant had taken place between individuals at the two companies.

However, the EAT dismissed the Claimant’s appeal against the employment judge’s decision that his claim was precluded by the COT3. The COT3 was worded in very wide terms, applying to any claims arising ‘directly or indirectly out of or in connection with’ the Claimant’s employment or termination with QRA Ltd. The Claimant’s claim under the Equality Act involved an indirect link or connection with his employment with QRA Ltd. The claim was also connected with his previous complaint of race discrimination, which was about his treatment while an employee of QRA Ltd and which gave rise to the protected act necessary for the victimisation claim to be brought.

The COT3 waiver was therefore wide enough to cover a claim brought after the COT3 had been signed by both parties. It was irrelevant if the parties knew at the date of signing the COT3 that the claimant may have been considering bringing another claim.

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