COT3 breach of confidentiality

[happylife]

Hi

I'm about to sign a COT3 with ACAS mediating. In it there is a confidentiality clause stating cannot discuss. There are many people who already know the reasons I was dismissed but not the outcome. Now on my employers Facebook he has told everyone it was a positive outcome for him. Which basically says it wasn't for me.

Is this a breach of confidentiality. Should he really be saying this on Facebook. He doesn't mention me specific but everyone knows what he is referring to.

It's a boast that he didn't lose. I'm not happy.

Any comments welcome

[stevemLS]

Re: COT3 breach of confidentiality

I would say that if you are "about to sign" then the confidentiality obligations, as with the rest of it, are not yet binding.

I do think it is poor form and against the spirit of how these agreements are negotiated but doesn't formally amount to a breach.

The nature of a compromise agreement is that neither of you won or lost, you reached an agreement on the terms of your departure.

[happylife]

Re: COT3 breach of confidentiality

Yes i haven't signed. I will make a complaint to the ACAS mediator about it. Not that he can do anything.

If I was on Facebook saying it was positive for me I'm sure my employer would be not happy as his employees would think he settled.

As he didn't hand over any cash he thinks he's won.

[happylife]

Re: COT3 breach of confidentiality

I would say that if you are "about to sign" then the confidentiality obligations, as with the rest of it, are not yet binding.

.

Just spoke with ACAS and they said although no signature. as we have agree the T&C's they are legally binding. I will get advice on whether a possible breach.

My friends are asking me if I lost my tribunal case from this Facebook post and it is putting stress on me that every man and his dog now knows.

[stevemLS]

Re: COT3 breach of confidentiality

Right, well if you signed a mediation agreement, containing a confidentiality clause, that is a different matter. My point was that you cannot be bound by an agreement that has not yet been made.

[des8]

Re: COT3 breach of confidentiality

The COT 3 is not a legal requirement since an oral agreement reached following Acas conciliation is binding, provided it satisfies the legal formalities of a contract.

[happylife]

Re: COT3 breach of confidentiality

The COT 3 is not a legal requirement since an oral agreement reached following Acas conciliation is binding, provided it satisfies the legal formalities of a contract.

Ok so is this a mutual agreement. He posted the remark on the 17th June and I think the COT3 was agreed "verbally" on the 18th June 2015

I am asking ACAS for clarification.

Paragraph I think he has breached. By discussing the outcome was positive. Everyone knows now or thinks he has won the case !!


1. The Claimant and Respondent shall keep the existence and terms of this settlement (and the
circumstances leading up to termination) confidential except where disclosure is to HM Revenue and Customs, required by law or (where necessary or appropriate) to their legal or professional advisers or immediate family (provided that they agree to keep the information confidential).

[FlamingParrot]

Re: COT3 breach of confidentiality

Ok so is this a mutual agreement. He posted the remark on the 17th June and I think the COT3 was agreed "verbally" on the 18th June 2015

I am asking ACAS for clarification.

Paragraph I think he has breached. By discussing the outcome was positive. Everyone knows now or thinks he has won the case !!

1. The Claimant and Respondent shall keep the existence and terms of this settlement (and the circumstances leading up to termination) confidential except where disclosure is to HM Revenue and Customs, required by law or (where necessary or appropriate) to their legal or professional advisers or immediate family (provided that they agree to keep the information confidential).

He cannot be legally bound by something that didn't exist at the time so posting it a day before there was any agreement cannot be a breach as such, however, I would say the comment should be removed now an agreement has been reached.

The confidentiality clause above is very generic and would apply to virtually each and every COT3. It's been a long time since I had a COT3 myself but I distinctly remember there being clauses referring to 'making disparaging remarks' which are more specific because the clause above doesn't prevent either side from posting that the other side is xyz if the termination and settlement are not mentioned.

I also had an agreed reference built into the agreement, which I typed myself and was attached to the COT3 so whenever someone asked for a reference from the respondent, they were bound to say exactly that. I realise it may be unenforceable since you never know what others have said in response to a reference request but it's a start.

There should also be something regarding what happens if the terms of the agreement are breached, it's all well and good to have a list of terms but what happens if the other side doesn't stick to them?

Did you get any advice for the drafting of the COT3?

[teaboy2]

Re: COT3 breach of confidentiality

Did he win?

And what did he post word for word?

[happylife]

Re: COT3 breach of confidentiality

Did he win?

And what did he post word for word?

I spoke to a solicitor. They told me I had almost no chance of winning the tribunal case and I should try and settle or pull out.

A agreement was reached (no cash settlement). That I would drop Tribunal if they don't try for costs. (although costs are small chance I know he would try for costs on any win)

He then went on Company Facebook page (not personal page) saying

"
Highly recommend "Joe Bloggs" Solicitors for all employment needs
Whether employer or employee
Very professional and leave no stone unturned in there approach!!
Needless to say it was a positive outcome. :tinysmile_grin_t:
"


It's a sarcastic post and the last line that I was not happy with as staff think he now has won. And i'm being asked.

His Solicitor name deleted

[happylife]

Re: COT3 breach of confidentiality

Did you get any advice for the drafting of the COT3?

Thanks again for all your help. ACAS did the COT3 asked me to check. I had a few issues which were amended. Then we agreed.

[teaboy2]

Re: COT3 breach of confidentiality

I spoke to a solicitor. They told me I had almost no chance of winning the tribunal case and I should try and settle or pull out.

A agreement was reached (no cash settlement). That I would drop Tribunal if they don't try for costs. (although costs are small chance I know he would try for costs on any win)

He then went on Company Facebook page (not personal page) saying

"
Highly recommend "Joe Bloggs" Solicitors for all employment needs
Whether employer or employee
Very professional and leave no stone unturned in there approach!!
Needless to say it was a positive outcome. :tinysmile_grin_t:
"


It's a sarcastic post and the last line that I was not happy with as staff think he now has won. And i'm being asked.

His Solicitor name deleted

I don't think the post is sarcastic or in breach of confidentiality even if you he had made it after signing COT3. The post is a recommendation to others to use the Solicitor they named, and the remark about positive outcome is accurate as it was a positive outcome. He doesn't state any details as to the settlement itself, only that it was a positive result for them!

If you had won, you would have been telling everyone all about it, so its only fair to expect the same from them should you loose, and even though you got a settlement, they were, unfortunately, the winners technically as a result of the agreement as you have agreed to withdraw your claim!

[stevemLS]

Re: COT3 breach of confidentiality

I don't think the post is sarcastic or in breach of confidentiality even if you he had made it after signing COT3. The post is a recommendation to others to use the Solicitor they named, and the remark about positive outcome is accurate as it was a positive outcome. He doesn't state any details as to the settlement itself, only that it was a positive result for them!

If you had won, you would have been telling everyone all about it, so its only fair to expect the same from them should you loose, and even though you got a settlement, they were, unfortunately, the winners technically as a result of the agreement as you have agreed to withdraw your claim!

I agree and to the extent that you withdrew your claim, he did win, sorry.

[FlamingParrot]

Re: COT3 breach of confidentiality

I don't think the post is sarcastic or in breach of confidentiality even if you he had made it after signing COT3. The post is a recommendation to others to use the Solicitor they named, and the remark about positive outcome is accurate as it was a positive outcome. He doesn't state any details as to the settlement itself, only that it was a positive result for them!

If you had won, you would have been telling everyone all about it, so its only fair to expect the same from them should you loose, and even though you got a settlement, they were, unfortunately, the winners technically as a result of the agreement as you have agreed to withdraw your claim!

I agree and to the extent that you withdrew your claim, he did win, sorry.

Sorry to butt in here, but when I had a COT3 all those years ago, the whole point was to establish that neither party won or lost. It wasn't a question of withdrawing the claim as such but settling it. As with every claim, including those in the county courts, once a claim is settled it's 'withdrawn' from the legal process because it goes no further, however, that doesn't give either side the right to say they've won. If the matter didn't go to court/tribunal, neither side won as such. The odds may have been stacked against one side but that's not a loss, it's a race that was never run. I agreed to settle the claim (thus it was withdrawn) because I was given a 20% chance of winning it. The other side agreed to a 'commercial settlement without admission of liability'. I would never have signed an agreement that gave them the right to imply that they had won in any way, that would completely defeat the purpose of the COT3 agreements.

The whole point of having a non-disclosure clause is precisely to avoid anyone knowing the circumstances under which the case was settled, i.e. no-one can tell whether one of the parties 'won' or 'lost'. If one side can brag about winning, even without disclosing the fine details (i.e. whether any money was paid out or whether the other side withdrew the claim), there's hardly any point in having such a clause, is there? :noidea:

[teaboy2]

Re: COT3 breach of confidentiality

No ones saying they won officially, but given the basics of the background and reason for the settlement, technically the employer has won in the informal sense.

They are also not boasting about winning, they merely stated it was a "Positive Outcome" that could translate as to anything from not being as bad as they had expected or acceptable to both parties (as in this case) or anything up to a victory. So it could be positive in the sense they may have lost and amounts payable being nothing like they were expecting or simply positive in the fact that an agreement has been reached and it doesn't have to go to tribunal. Its basically open to interpretation and in no way breaches confidentiality of the COT3 or confidentiality of any aspect of the tribunal proceedings!