About Me

I’m a Barrister at Atlantic Chambers looking at various aspects of Employment Law including new developments in case law and legislation.

COT3 agreements and preventing Claimants giving evidence in other proceedings

I was asked an interesting question recently by a reader as to whether COT3 clauses which seek to prevent Claimants from giving evidence in other Employment Tribunal claims brought against the same employer, could be enforceable.

I do not recall coming across such clauses personally, but it perhaps is no surprise that some employers, particularly those with a plethora of claims against them, would seek to discourage Claimants from assisting other employees’ claims.

However, the problem from the employer’s perspective is that it appears likely that such clauses would be unenforceable on the grounds of illegality/public policy, at least in respect of a witness who has been ordered to attend a hearing by an Employment Judge. Under rule 10(6) of the current ET rules of procedure, if an Employment Judge makes a witness order and that person fails to attend the hearing without reasonable excuse, they would be liable on summary conviction to a fine.

See Lord Denning in Harmony Shipping Co SA v Davis and others [1979] 3 All ER 177 (CA) at 182:

If there was a contract by which a witness bound himself not to give evidence before the court on a matter on which the judge said he ought to give evidence, then I say that any such contract would be contrary to public policy and would not be enforced by the court. It is the primary duty of the courts to ascertain the truth: and, when a witness is subpoenaed, he must answer such questions as the court properly asks him. This duty is not to be taken away by some private arrangement or contract by him with one side or the other.

See further Fulham Football Club Ltd v Cabra Estates plc [1992] BCC 863 (CA), where the court held at 873:

Clearly no convenant or undertaking can lawfully require a convenantor to give false evidence……Nor can a convenant or undertaking prevent a witness from attending to give evidence in response to a subpoena.

Of course, if there is any uncertainty as to the enforceability of any clauses within COT3s or compromise agreements, specific legal advice should be taken.

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