Employment & Pensions Blog: Relying on protected disclosures covered by COT3 terms found to be an abuse of process

In Ajaz v Homerton University Hospital NHS Foundation Trust, the Employment Appeal Tribunal (EAT) found that an Employment Tribunal had erred in finding that a Claimant was prevented from bringing new detriment claims, relying on the same protected disclosures which she had made in an earlier tribunal claim, which was dismissed following the parties entering into a settlement.

Background

In 2017 the Claimant brought claims in an Employment Tribunal for whistleblowing detriment against the Trust (First Claim). The parties entered into a COT3 agreement in settlement of the Claimant’s First Claim, which resulted in her withdrawing her claims against the Respondent.

An important term of the COT3 required the Claimant to undertake and agree that she would not:

“reactivate by any process whatsoever the issues/ complaints in the Proceedings or issue any further and/ or new claims or claims of any nature against the [Trust] … arising from or in relation the issues/ complaints in the Proceedings or her employment to the date of this Agreement.”

Notwithstanding this, in 2021, the Claimant issued a further tribunal claim for whistleblowing detriment against the Trust (Second Claim). The detriments allegedly suffered were all said to have taken place after the COT3 was entered into. That said, the Claimant was seeking to rely on the same protected disclosures she sought to rely on in her First Claim.

The Respondent applied for the Second Claim to be struck out on the basis that it was an abuse of process as the Claimant had withdrawn her First Claim and had, as part of her COT3 terms, agreed not to re-instigate proceedings in respect of the same issues. The Second Claim was struck out and the Employment Tribunal found that the Claimant was “estopped” from pursuing her Second Claim due to the effects of rule 52 of the Tribunal Rules 2013 and that, in the alternative, this was an abuse of process because her Second Claim breached the COT3 terms she had previously entered into with the Trust.

Dissatisfied with the Tribunal’s decision, the Claimant appealed the judgment on the basis that her Second Claim was not the same, or substantially the same, as her First Claim and that the terms of the COT3 only prevented her from reactivating complaints raised up to the date of the COT3. Therefore, in her view, she was entitled to bring claims which post-dated the signing of the COT3.

Employment Appeal Tribunal’s Decision

Whilst the EAT rejected the Employment Tribunal’s finding that the Claimant was estopped from pursuing her Second Claim by the operation of Rule 52 of the Tribunal Rules 2013, it upheld the Employment Tribunal’s decision that it was an abuse of process for the Claimant, who had already settled her First Claim, to seek to relitigate issues which arose from her original protected disclosures. The EAT highlighted that the Claimant was prevented by the terms of the COT3 from bringing a new claim that relied on the same protected disclosure (and therefore the same issues) as pleaded in her First Claim, even though the detriments were new.

Comment

Whilst this will be reassuring for employers, employers must still be aware that a previously entered into COT3/settlement will not prevent an employee/worker from making new protected disclosures and instituting further proceedings. This case also acts as a reminder of the importance of ensuring that COT3 terms are appropriately drafted to maximise protection for an employer particularly if the individual involved remains in their employment post settlement. 

If you have any questions about this case or a related issue, please reach out to a member of our Employment Team.