Can whistleblowing claims be brought after the signing of a COT3 agreement?

This was considered in the case of Ajaz v Homerton University Hospital NHS Foundation Trust [2023] EAT 142. The Employment Appeal Tribunal (EAT) held that a claimant who had entered into a COT3 agreement to settle claims of whistleblowing detriment could not bring a new claim based on detriments that occurred after the COT3 arising out of the same disclosures. The EAT held it would be an abuse of process for a claimant to attempt to relitigate the disputed issue of whether the disclosures had been protected.

Background

Where an employment tribunal claim is settled through Acas conciliation, the terms of settlement will usually be recorded in a COT3 agreement which will usually provide for any tribunal claim to be withdrawn.

Tribunals also have the power to strike out claims where they have no reasonable prospect of success or are vexatious. This would include cases where the claim is barred by res judicata or is otherwise an abuse of process.

Facts of the case

In 2017, Dr Ajaz brought claims in an Employment Tribunal on the basis that she was subjected to detriments as a result of whistleblowing against Homerton University Hospital Trust. The claim was settled through a COT3 agreement. The COT3 agreement included a clause that the claimant could not issue any further or new claims of any nature against the Respondent ‘arising from or in relation to the issues/complaints in the Proceedings or her employment to the date of this Agreement.’

In 2021, the claimant then brought a further tribunal claim for whistleblowing, claiming that as a result of having made the original protected disclosures, she had suffered further detriments after the date of the COT3. Therefore, she had been subjected to new detriments, but which related to the protected disclosures which she relied on as part of her 2017 claim. The claimant argued that the COT3 settlement was limited to claims arising ‘up to the date of the agreement’ and so any ‘reactivation’ of issues in the COT3 was allowed, provided that the detriments post-dated the COT3.’

The Respondent applied for the second claim to be struck out on the basis that it was abuse of process, as the claimant had withdrawn her first claim, and in the COT3 agreement, had agreed not to re-instate proceedings for the same issues.

The second claim was struck out, and the Employment Tribunal found that the claimant was ‘estopped’ from pursing the claim, and alternatively, this was an abuse of process as her second claim breached the terms of the COT3 agreement that was previously entered into with the Trust.

The claimant appealed the decision on the basis that the terms of the COT3 agreement only prevented her from reactivating complaints raised up to the date of the COT3.

EAT judgement

The EAT decided that, as the claimant was relying on the same protected disclosures, irrespective of the fact that the detriments were new, she was prohibited from bringing a new claim under the terms of the COT3.

The EAT also held that to allow the claim to progress would be an abuse of process because it attempted to relitigate the issue of whether the claimant had made protected disclosures. According to the wording of the COT3, the claimant had not only settled her complaints but also all issues arising from those complaints. The new detriments were not considered to be relevant as the issue surrounding the protected disclosures had been settled by way of the COT3 agreement.

The claimant could therefore bring future claims but not to the extent that they reactivated the issues settled by the COT3 agreement.

Comment

The judgment can be considered harsh for employees, as it means the COT3 agreement had the claimant left feeling vulnerable to future detriments to disclosures she had already made. The case can be considered as a warning to claimants who are negotiating terms of the COT3 agreement to ensure the wording does not remove ongoing protection from future detriments arising out of the same disclosures.

This decision is welcome news for employers. However, employers should be aware that a previously entered COT3 agreement will not prevent employees from making new protected disclosures and commencing further proceedings on this basis notwithstanding a previous COT3 agreement.

The case serves as a reminder to carefully draft COT3 terms to enhance employer protection especially when the individual stays employed post the COT3 agreement.