Can I sue my employer for personal injury when I signed a compromise agreement?
With ongoing employment uncertainty in Scotland and a possible rise in Compromise Agreements as a result of Covid-19 this is an important question. In short, you are not automatically barred from pursuing a personal injury action against an employer if you have signed a Compromise Agreement.
This issue was addressed recently by the Court of Session’s decision in the case of Troup v West Lothian Council (2020) CSOH 29. In that case Ms Troup (“the Pursuer”) had been employed by West Lothian Council (“the Council”) as a teacher between 2004 and 2017. The Pursuer raised a personal injury action against the Council alleging that she had suffered a major depressive disorder with anxiety as a result of the Council’s breach of duty by failing to take reasonable care for her mental health.
Prior to raising a personal injury action against the Council the Pursuer had raised a claim at the Employment Tribunal (4100245/2017). The tribunal claim was brought under the Equality Act 2010 and the Pursuer alleged that (i) she had suffered discrimination by reason of her disability; (ii) the Council had failed to make reasonable adjustments; and (iii) she had suffered harassment as a result of her disability.
The Employment Tribunal claim was settled by way of a compromise agreement which contained the following clause which excluded:
“any claim related to accrued pension rights and any claim for damages for personal injury which may be brought within the ordinary civil courts of Scotland arising from circumstances occurring prior to 12 May 2017.”
After the Pursuer raised her personal injury action the Council alleged that the Pursuer was personally barred from raising this action against them in light of the compromise agreement previously entered into.
Lord Mulholland stated that settlement agreements entered into between parties to settle claims extra-judicially are binding contracts. The compromise agreement in this case was no different. However, the question in the present case, according to Lord Mulholland, was whether the present personal injury action was covered by the compromise agreement.
Lord Mulholland held that the nature of proceedings in the Employment Tribunal Claim and personal injury action were different. He rejected the Council’s plea of personal bar and held that there was no “ambiguity in the wording” of the exclusion clause. The Pursuer was therefore not barred from raising a personal injury action against the Council.
Therefore, it is important to note that clients should not presume that by signing a Compromise Agreement they are necessarily barred from pursuing a personal injury action against an employer.
Contact Our Team
Our Personal Injury team led by Michael Wilson is well placed to advise whether you are able to make a personal injury claim as a result of an accident at work.
Please contact Michael now on 0141 887 5271 or email him at michael.wilson@walkerlaird.co.uk and he’ll be in touch.
