Jurisdiction(s):
United Kingdom

Clifford v IBM [2024] EAT 90: EAT endorses Bathgate; future statutory employment claims can be waived if specifically identified; no clean break distinction; EqA 2010 s147 concerns identification, not timing

Published on: 12 June 2024

Published by a LexisNexis Employment expert

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Article summary

Clifford v IBM United Kingdom Ltd [2024] EAT 90

What are the practical implications of this case?

Settlement agreements are the staple of employment practitioners, so it is crucial to be clear about which claims they can legitimately waive. Considerable doubt has persisted over whether prospective claims—those not yet arisen and unknown to the parties at signing—can, with careful wording, be effectively released within a settlement. In Bathgate, the Court of Session determined that such future claims could indeed be compromised, provided the categories of claim were clearly specified in the agreement. Nonetheless, uncertainty remained as to whether:

the EAT in England and Wales would align with the Court of Session’s approach
a difference should be drawn between a ‘clean break’ end of employment (as in Bathgate) and situations where employment continues

In this decision, Williams J unequivocally endorses and applies Bathgate. She dismisses any attempt to distinguish between ‘clean break’ scenarios and ongoing employment. The upshot is that, with sufficiently precise drafting that clearly identifies the types of claim, parties can settle even those claims that have not yet arisen and were not known at the time of signing, reinforcing settlement agreements as the employment lawyer’s everyday toolkit...

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