26 March 2020

As we all enter uncharted times both professionally and privately, there is bound to be, it would seem, a sea change in working practices and expectations post Covid-19.

I write this from my kitchen, while three primary school age children hustle me for corn flakes and milk and extra un-negotiated time on various streaming services. All this notwithstanding we had a clear discussion on what the parameters were in the new normal. The “natural and ordinary meaning” of what we discussed may have been interpreted differently, it would appear.

Without wishing to be trite, this alludes to a recent decision in the Court of Session by Lord Mulholland in Jennifer Troup v West Lothian Council:
https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020csoh29.pdf?sfvrsn=0
An employee sued for personal injury in the form of depression caused by the breach of the common law duty of her employers to take reasonable care for her health and safety. Crucial to the issue at dispute is the fact that the same employee had previously raised an employment tribunal which had settled by way of compromise agreement. This agreement included provisions such as to ensure that no claim for unfair dismissal could be raised. It also had an exclusion clause which, broadly, denied its application to any claim for personal injury.

The Defenders argued that the Pursuer was personally barred from raising her personal injury action under terms of the compromise agreement. The terms of the compromise agreement were precise and in the view of Lord Mulholland “unambiguous.” The court was not persuaded by the Defenders that the compromise agreement – along with its exclusion clause – ought to be interpreted so narrowly as to exclude the present action as being rooted on the same basis as the employment tribunal claim. The employment tribunal case was founded on disability discrimination suffered by the Pursuer, whereas the action for personal injury was founded on broader allegations of negligence and failure in duties of reasonable care.

The key factor was that the employment tribunal was separate. Clients would be well advised to ensure that they are aware of such potential circumstance and not to assume that, if an employee settles an employment tribunal then they are necessarily barred from pursuing a claim for injury caused by stress at work, for example. BTO are well positioned to assist clients at both ends of this paradigm; in guiding through employment tribunal advice and also in personal injury claims brought before or after the termination of employment.

This is not new law, but it highlights the importance of the distinctions made between types of action and refers back to the presumption against employers “contracting out” of liability for injury to their employees. As an aside, with an anticipated upsurge in working from home even once we are released from current travel and social distance restrictions, it remains to be seen whether such working is more or less stressful than being in the office. I may have my own view on that and am off to revise the small print for my domestic home schooling and childcare arrangements…

For further information, please do not hesitate to contact:

Tim Webster, Associate, E: twe@bto.co.uk / T: 0141 221 8012