Is this COT3 valid?

Brynsam

I think you need to get yourself proper legal advice. It's unlikely you will get an accurate answer here given that, of necessity, only a sketchy selection of facts can be made available to those reading this thread.

bobthelog

Undervalued said:

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.

Thank you very much for your detailed response. This is very important to me so I need to get this right and I appreciate you don't know everything but I can't say everything on an online forum without jeapordising my new claim.

1. I know there is no legal requirement for me to have had legal advice prior to signing the COT3 but were they allowed to phone me not even 24 hours after I had received this complicated document (and it IS complicated to the untrained lay person). Were they allowed to continue to phone me, 'have you seen it, what do you think? do you have any problems? what are the problems? why the delay? why won't you sign it? what is there left to agree?' . I clearly remember my mobile ringing and I saw the ACAS number and ignored it as I couldn't handle it again.

2. COT3 prevents me from making ANY future claims? (sorry I don't know how to bold! so excuse the capitals!) So say they set up the COT3 to prevent me suing them from constructive dismissal (their actions led to mental distress), (which is what it was) then.. I don't know I find out there has been a breach of my data or something not in the COT3 - am I prevented from making a claim against them for loss of data (say).

3. My therapist firstly carries the prefix of Dr. She is an experienced and qualified psychologist, with a masters in psychology as well as many years experience working for the NHS. She is registered with the british psychological society as a chartered counselling psychologist. Will that hold weight?

4. My employers knew I was mentally ill as I had spelled it out in my resignation letter. No, they aren't medical people but anyone with half a brain cell would have been concerned - you know what having given them my time and doing a superb job, you'd think they would have been concerned enough to PHONE ME to see how I was?! However, we are talking about human decency now rather than the mechanical nature of the legal mind (so it seems - not meant at you at all ok, just from general reading etc, seems there is little room for compassion in the court room?).

As a mentally unwell person it was difficult to know that I should make anyone aware of my potential lack of capacity as I didn't know I didn't have it, if that makes sense?  The best way I can describe it is that your brain is full of fog. I don't know about you personally, but it's like when you first wake up on a morning and you are like, 'uh? coffee. don't ask me questions.' for a short time - that's how it is permanently all day every day and it's terrifying. So to answer your question, no I did not say, 'hey I think I lack capacity here' (though I really wish I had as that might have made them stop phoning me) because I didn't know what to do, i just wanted them to stop phoning me, pay me money as I was not in a position to work since I was too ill, and go away. So I signed it and they stopped hassling me.

5. Garden leave - no it is in my contract that either of us give 3 months notice to the other on full pay so they were legally obligated to pay me. I missed all of this since I just wanted to be left alone and just did whatever they wanted so they stopped phoning me.

See, I have never had to sign a COT3 before. They were all nicey nicey, yeah we will pay you your notice without you having to come into the office (which by the way if I had, there is a danger I could have used that time to get lots of client information and they would never have known I had done that and therefore could never sue me, and if they did it is costly etc, so it is usually worthwhile to pay you and get yuo to stay at home and they usually ask you to leave asap to avoid this). I said, 'great' they then hit me with a COT3 I have no experience of. ACAS said they couldn't give me any legal advice as to whether it was a fair deal or whether to sign it or what I was signing away here. I am sure the ACAS guidance say you have to leave the employee alone with the COT3 for up to 10 days but longer if they're ill? I instead had signed it within 5 working days due to the incessant hassle I received.

Thoughts now?

Thanks again, much appreciated.

thebrexitunicorn

Undervalued said:

A COT3 (or a settlement agreement) basically prevents you from making any future claims against your employer. 

A COT3 records whatever terms the parties have agreed. As a minimum it will settle a potential or existing claim.  It does not necessarily prevent any future claims against an employer, that would depend on the specific terms.  

FBaby

Dr Psychologist means that they gave gained a Doctorate, not that they qualified as a Doctor going to Medical School.

You say that ACAS asked if you needed more time. You had the option to say yes and to ask them not to contact you for X days. Mental health  issues or not, you gave to take some responsibities for the decisions you've made. 

bobthelog

FBaby said:

Dr Psychologist means that they gave gained a Doctorate, not that they qualified as a Doctor going to Medical School.

You say that ACAS asked if you needed more time. You had the option to say yes and to ask them not to contact you for X days. Mental health  issues or not, you gave to take some responsibities for the decisions you've made. 

Hi, sorry if I didn't say it properly. No, ACAS did NOT ask me if I needed more time. I just thought it was written in an ACAS code somewhere? I am certain I have seen it written down.

To confirm: ACAS acted as follows:

Day 1 (PM): Emailed me the proposed COT3

Day 2 (AM): Phoned my mobile - I ignored it as I hadn't even read it

Day 2: (PM): Rang my landline and I wasn't in.

Day 2: (PM): Emailed me and said, 'I have rung both your phones to no response, let me know what is happening.'

Day 3: (AM): Rang my mobile and I answered and said I hadn't looked at properly and asked them what they thought I should do and they said that they couldn't give me advice.

Day 3: (PM): Rang my mobile - have you look at it yet? I said no.

Day 4..... same as above, plus my exmployer emailed me every day to see if I had signed it yet. On day 5 I was so harrassed and sick of them phoning me that I said yes. I wasn't strong enough at the time to tell them to stop phoning me and leave me alone, the thought ever popped into my head as like I say my brain was full of mush/fog/overwhelmed with severe depression, it was enough to make it out of bed. I didn't shower for days and stayed in my pajamas all day staring out the window while my brain did it's own thing.

Afterwards I saw a friend who said they should be paying it tax free. So I phoned ACAS and they said nothing they could do as I'd agreed it now. I said I hadn't signed and they said you agreed verbally so that's that.

bobthelog

And Dr Psychologist is:

Chartered Membership (CPsychol)

The title of Chartered Psychologist is legally recognised and reflects only the highest standard of psychological knowledge and expertise.

The other question is, I signed the COT3 around a year ago. Do I have capacity to litigate now? And if I don't what are the legal ramifications?

You are all so helpful so thank you.

Undervalued

bobthelog said:

And Dr Psychologist is:

Chartered Membership (CPsychol)

The title of Chartered Psychologist is legally recognised and reflects only the highest standard of psychological knowledge and expertise.

The other question is, I signed the COT3 around a year ago. Do I have capacity to litigate now? And if I don't what are the legal ramifications?

You are all so helpful so thank you.

No, not just because a year has gone by. It depends on what the COT3 excludes. Normally settlement agreements / COT3 exclude just about everything they can! There are also a few (very few) things that are excluded automatically by law.

The qualifications of this therapist are a red herring. It is not her role to legally certify that you do not have capacity (which has a very specific meaning). If she did suspect / believe that, then she should have encouraged you to urgently see a (medical) doctor. Even if it was the case that a lack of capacity had been properly established, both ACAS and the employer would need to have been made formally aware of the situation. They are not medical experts or mind readers!

Sorry but if you really want to progress this further you need to see a solicitor who specialises in employment law. They can study what you have signed and consider any other relevant factors and advise you if you have any case at all. Even if (HUGE IF) there is a case, you need to consider very carefully the mental strain that pursuing it will involve.

I really don't think a forum can help you progress this any further.

steampowered

What is your goal here. You describe yourself as mentally unwell. Do you really think it is in the best interests of your mental  health to start ANOTHER legal claim against your employer?

Why do you want to put yourself through another court or tribunal process?

I don't think you have a leg to stand on with regards to claiming the COT3 is invalid:
1) It is a bit ridiculous for you to suggest that you were harassed into signing the COT3 because ACAS called you and sent you an email over a 3 day period. Obviously, ACAS need to know whether you are happy with the settlement that has been offered or not - that is their job. If you wanted more time you should have said that.

2) Your therapist is not a lawyer. The legal threshold for incapacity to sign a contract is extremely high. If you didn't have mental capacity to sign the COT3, you didn't have mental capacity to sue your employer.

Dox

bobthelog said:

Undervalued said:

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.

Thank you very much for your detailed response. This is very important to me so I need to get this right and I appreciate you don't know everything but I can't say everything on an online forum without jeapordising my new claim.

1. I know there is no legal requirement for me to have had legal advice prior to signing the COT3 but were they allowed to phone me not even 24 hours after I had received this complicated document (and it IS complicated to the untrained lay person). Were they allowed to continue to phone me, 'have you seen it, what do you think? do you have any problems? what are the problems? why the delay? why won't you sign it? what is there left to agree?' . I clearly remember my mobile ringing and I saw the ACAS number and ignored it as I couldn't handle it again.

2. COT3 prevents me from making ANY future claims? (sorry I don't know how to bold! so excuse the capitals!) So say they set up the COT3 to prevent me suing them from constructive dismissal (their actions led to mental distress), (which is what it was) then.. I don't know I find out there has been a breach of my data or something not in the COT3 - am I prevented from making a claim against them for loss of data (say).

3. My therapist firstly carries the prefix of Dr. She is an experienced and qualified psychologist, with a masters in psychology as well as many years experience working for the NHS. She is registered with the british psychological society as a chartered counselling psychologist. Will that hold weight?

4. My employers knew I was mentally ill as I had spelled it out in my resignation letter. No, they aren't medical people but anyone with half a brain cell would have been concerned - you know what having given them my time and doing a superb job, you'd think they would have been concerned enough to PHONE ME to see how I was?! However, we are talking about human decency now rather than the mechanical nature of the legal mind (so it seems - not meant at you at all ok, just from general reading etc, seems there is little room for compassion in the court room?).

As a mentally unwell person it was difficult to know that I should make anyone aware of my potential lack of capacity as I didn't know I didn't have it, if that makes sense?  The best way I can describe it is that your brain is full of fog. I don't know about you personally, but it's like when you first wake up on a morning and you are like, 'uh? coffee. don't ask me questions.' for a short time - that's how it is permanently all day every day and it's terrifying. So to answer your question, no I did not say, 'hey I think I lack capacity here' (though I really wish I had as that might have made them stop phoning me) because I didn't know what to do, i just wanted them to stop phoning me, pay me money as I was not in a position to work since I was too ill, and go away. So I signed it and they stopped hassling me.

5. Garden leave - no it is in my contract that either of us give 3 months notice to the other on full pay so they were legally obligated to pay me. I missed all of this since I just wanted to be left alone and just did whatever they wanted so they stopped phoning me.

See, I have never had to sign a COT3 before. They were all nicey nicey, yeah we will pay you your notice without you having to come into the office (which by the way if I had, there is a danger I could have used that time to get lots of client information and they would never have known I had done that and therefore could never sue me, and if they did it is costly etc, so it is usually worthwhile to pay you and get yuo to stay at home and they usually ask you to leave asap to avoid this). I said, 'great' they then hit me with a COT3 I have no experience of. ACAS said they couldn't give me any legal advice as to whether it was a fair deal or whether to sign it or what I was signing away here. I am sure the ACAS guidance say you have to leave the employee alone with the COT3 for up to 10 days but longer if they're ill? I instead had signed it within 5 working days due to the incessant hassle I received.

Thoughts now?

Thanks again, much appreciated.

Same as before. Get proper legal advice. Not nearly enough info.

bobthelog

So are we saying that there is at least a likelihood it isn't valid?