Background:

The claimant brought claims against the respondent in 2017 on the basis that she had been subject to detriment as a result of protected disclosures that had been made.   The case in 2017 was settled under an ACAS COT3 agreement.  Within that agreement it stated that the claimant would not re-litigate the complaints in the proceedings.   In 2021 the claimant brought further proceedings against the respondent citing new detriments but relating to the original disclosures.   She contended that the detriment took place after the COT3 Agreement.  The issue was whether the claimant could bring the claim.

Outcome:

The Tribunal, at first instance, stated that the claimant was estopped as a result of Para 52 of Schedule 1 of the Rules of Procedure because the claim had been withdrawn/dismissed in 2017.   They also found that it would be an abuse of process considering the settlement the claimant reached with the respondent.

The EAT heard the appeal.  On the issue of estoppel by way of Paragraph 52 it was found that the Tribunal had erred.   The meaning of complaint meant a ‘claim, complaint, reference, application or appeal’.  The Tribunal decided that there was estoppel as the necessary ingredient, that being the disclosure, was the same.  Yet that did not fit without having a consideration of the overall merits considering there was some difference relating to the claim of detriment.

On the abuse of process point, it was held that COT3 agreements could compromise future claims.   The COT3 was standard in that the claimant could bring future claims but could not bring proceedings which reactivated the issues in the 2017 proceedings.  It was not sufficient that such claims post-dated the COT3 for them to be excluded.   The COT3 did state that the claimant was not aware of any other claims and whilst she could not be aware of future detriment she was aware of the issues.  As a result, the appeal was not allowed on the abuse of process point.   The EAT holding that the claimant could continue to make disclosures or reiterate previous ones but could not take claims relating to protected disclosures which had been subject to a settlement.

Practical Guidance for Employers:

This case demonstrates with issues relating to issues already adjudicated or agreed.  The decision makes the difference between the rules of procedure and settlement agreements.  The rules of procedure are more narrow than excluding all claims relating to a particular source yet the settlement was drafted in a way which could lead to an abuse of process for an application to be brought relating to the same protected disclosure.

You can read the full case here:
Dr Sara Ajaz v Homerton University Hospital NHS Foundation Trust: [2023] EAT 142 - GOV.UK