Whistleblowing protection: Claimant prevented by COT3 agreement from making new claims based on same disclosures

Facts

In the case of Ajaz v Homerton University Hospital NHS Foundation Trust, the claimant brought whistleblowing detriment claims (Original Claims) which were settled under a COT3 agreement. A COT3 is a type of settlement agreement which is conciliated by ACAS and records the terms of settlement of an Employment Tribunal claim. The terms of a COT3 agreement are to be negotiated between the parties, and in this case, the COT3 included wording stating that the claimant would not issue "new claims arising from or in relation to the issues/complaints in the proceedings".

After the parties entered into the COT3, the claimant brought new whistleblowing claims (New Claims). She said that as a result of her original protected disclosures, senior colleagues were refusing to allow her to build professional experience which would allow her to progress in her career. The judge struck out the New Claims on the basis that she was prevented from pursuing them due to the COT3 agreement. The claimant appealed to the Employment Appeal Tribunal (EAT).

EAT decision

The EAT agreed with the Tribunal that the New Claims were an abuse of process, and upheld the Tribunal's decision to strike out the New Claims. The claimant was not prevented under the Employment Tribunal Rules of Procedure from pursuing the New Claims. However, the wording of the COT3 agreement was key in that it settled not just the 'complaints' but also the 'issues' relating to the Original Claims. The question of whether the claimant's disclosures were protected was an issue in respect of which the parties had litigated in the Original Claims. The same issue was relevant to the New Claims. The claimant could bring future claims but not to the extent that they reactivated the 'issues' settled by the COT3. She was therefore not entitled to pursue the New Claims, despite the fact that they related to alleged detriment she had not suffered at the time the COT3 was entered into.

Learning points

This decision demonstrates the importance of carefully drafting COT3 agreements and other settlement agreements. Had the COT3 agreement in this case not included the word 'issues', the claimant may not have been prevented from pursuing the New Claims.

For more information and advice, please contact Gareth Edwards in our Employment team on 0117 314 5220 or complete the form below.