Is this COT3 valid?

bobthelog

Hi,

I signed a COT3 with ex employers and wondered if it was actually valid, as follows, note I left due to stress for massive overwork (they had sick notes for all of this saying work related stress) and the last thing I wanted was to go back into the office and face the piles of paperwork:

1. I never instigated a claim. There was no claim. They did it and apparently I signed to say I couldn't sue them for anything ever again. So there was no claim to "settle".

2. They said, in an email, if you don't sign the COT3 then we won't pay you your notice period unless you come into work. (Abhorrent to me, where do I sign?!)

3. My therapist at the time says it's doubtful I had capacity to sign it.

4. It included paragraphs saying I couldn't whistle blow - before #metoo - but still it was recently banned in my industry.

What are your thoughts on points 1-4?

Much appreciated.

Undervalued

Short answer - yes!

Was much of this discussed on here under a different user name a few weeks ago? Apologies if it genuinely was not but there are a lot of similarities!

1. Doesn't matter you were getting a benefit (pay in lieu of notice) and in exchange agreed to waive any other claim you might have had. Your choice.

2. As above

3. Was this "therapist" a qualified medical doctor who could legally make judgements about capacity? There is no legal requirement in the UK for "therapists" such as counsellors, psychotherapists or most forms of psychologists to hold any qualification whatsoever or be registered in any way! As such their opinion is of little legal relevance.

4. "Whistleblowing" has a very precise and limited meaning in UK law. Genuine "Whistleblowing" cannot be legally excluded but any other form of speaking ill of your employer  (be it true or otherwise) can be.

steampowered

Was the COT3 administered by ACAS?

Did you receive independent legal advice?

If the answer to both of those questions is no, this agreement will not be binding. You need to have obtained independent legal advice in order for a waiver of employment rights to be binding.

The Citizens Advice website explains this: https://www.citizensadvice.org.uk/work/problems-at-work/making-a-settlement-agreement-with-your-employer/

Undervalued

steampowered said:

Was the COT3 administered by ACAS?

Did you receive independent legal advice?

If the answer to both of those questions is no, this agreement will not be binding. You need to have obtained independent legal advice in order for a waiver of employment rights to be binding.

The Citizens Advice website explains this: https://www.citizensadvice.org.uk/work/problems-at-work/making-a-settlement-agreement-with-your-employer/

With respect, whilst when read very carefully this is correct, it is easily misunderstood.

To clarify, there is no requirement (as I understand it) for independent legal advice if this was a COT3 done via ACAS. 
If it wasn't done via ACAS then it is a settlement agreement, which is only valid if the employee received independent advice either from a solicitor or a specially trained trades union rep.

Marcon

bobthelog said:

Hi,

I signed a COT3 with ex employers and wondered if it was actually valid, as follows, note I left due to stress for massive overwork (they had sick notes for all of this saying work related stress) and the last thing I wanted was to go back into the office and face the piles of paperwork:

1. I never instigated a claim. There was no claim. They did it and apparently I signed to say I couldn't sue them for anything ever again. So there was no claim to "settle".

2. They said, in an email, if you don't sign the COT3 then we won't pay you your notice period unless you come into work. (Abhorrent to me, where do I sign?!)

3. My therapist at the time says it's doubtful I had capacity to sign it.

4. It included paragraphs saying I couldn't whistle blow - before #metoo - but still it was recently banned in my industry.

What are your thoughts on points 1-4?

Much appreciated.

I wonder what's made you ask the question now - presumably not 'just out of interest'? If you could be a bit more specific about your reasons, it might be easier to give more helpful responses based on a better understanding of your situation.

bobthelog

Hi,

1. no, not me who mentioned it a while ago. This is the first time I have come on about it. However, I would like to see their thread.

2. my "therapist" is a professionally trained, qualified up to her ears in psychological degrees etc.

3. yes, it was done via ACAS. However, to add a bit on there, I was harrassed to sign it. So, it went like this. I got it in the body of an email on Monday afternoon. On Tuesday ACAS phoned me in the morning and the afternoon then emailed me asking me if I had made a decision yet. On Wednesday my employer emailed me to see if I had signed it yet. On Wednesday afternoon ACAS sent me an email saying 'i have tried your mobile phone and your home phone and got no response, please let me know if you are ready to sign' and as it went on. By Monday I was sick of them phoning me and despite me not even understanding it properly to this day - the first pargraph is 20 lines long and contains ONE sentence - I just agreed to stop them going on. Employer knew I wasn't well mentally. I thought you had to give some time to let employee digest and discuss it? If they are ill then you give them longer? No?

4.  it's not just out of interest it has become a very irrelevant and annoying part of a court case as it isn't even relevant to the claim but I'd like to annihalate it.

Thank you so very much for your responses and help.

bobthelog

Query: how can you "settle a claim via a COT3" when there is no claim?

bobthelog

I am sorry for the individual posts - there is no editing function?

Anyway, does it matter if I tell you they decided to close the firm a month before the instigated the COT3?

bobthelog

Finally, "1. Doesn't matter you were getting a benefit (pay in lieu of notice) and in exchange agreed to waive any other claim you might have had. Your choice."

No it wasn't a PILON payment as I was on garden leave for 3 months in exchange for pay.

Undervalued

Well I am sorry but there is no requirement for you to have received legal advice regarding a COT3 agreed via ACAS.

A COT3 (or a settlement agreement) basically prevents you from making any future claims against your employer. It was your choice to sign, you didn't have to. You could have refused and taken your chance with any legal action you decided to bring. There doesn't need to have been "a claim" before the COT3 was signed.

However well qualified this "therapist" is, I very much doubt her opinion would carry much weight. "Capacity" is for a doctor (normally a consultant psychiatrist) to decide. In any case were your employers and / or ACAS made aware that your mental capacity was in serious question?

Garden leave is a "benefit" and not a right. The employer could have said turn up and get paid or stay at home on sick pay (which may well have reached zero by then). So you had several months salary over and above your legal entitlement.

"Employer knew I wasn't well mentally". Did they? Are they medically qualified to know that? Did they have specialist advice? An occupational health report setting this out? Sorry, but a GP helpfully writing "work related stress" on a sick not is not sufficient.

Sorry to be blunt but this is nothing to what you will receive if you pursue legal action over this and your employer instructs lawyers to defend your claims.

steampowered

As the COT3 was administered by ACAS, it is legally binding.

What is the significance of all this? Are you starting another legal action?