In Ajaz v Homerton University Hospital NHS Foundation Trust, the Employment Appeal Tribunal has held that an employment judge erred in concluding that rule 52 of the Tribunal Rules 2013 prevented the claimant from raising new whistleblowing detriment claims after earlier detriment claims that were based on the same protected disclosures were dismissed following withdrawal by the claimant. However, the employment judge was correct in concluding that the new claims were an abuse of process because they attempted to relitigate the issue of the same protected disclosures, which the Appellant had settled under a COT3 agreement.

In 2017, the Appellant brought claims of whistleblowing detriment contrary to section 47B of the Employment Rights Act 1996 (ERA). After agreeing to settle under a COT3 agreement, she withdrew her claims, which an Employment Judge then dismissed. The Appellant remained employed by the Respondent.  The Appellant later presented further claims in May and September 2021. These were also claims of detriments contrary to section 47B ERA, arising out of the same disclosures as the 2017 claims, but arising after the COT3 had been entered into. The Respondent applied for the claims to be struck out as an abuse of process. 

The employment judge agreed and struck out the claims on the following grounds:

  • Rule 52 sets out that where a claim, or part of it, has been withdrawn, the Tribunal shall issue a judgment dismissing it and the claimant may not then commence a further claim against the respondent raising the same, or substantially the same, complaint, subject to certain exclusions.    The judge held that the claims in the first claim had two inextricably inter-linked components (the qualifying disclosures and the consequent detriments). The claims consisting of both components came to an end on the withdrawal and dismissal. Consequently, the withdrawal means that a mandatory judgment under Rule 52 prevents a further claim, consisting of both such necessary components, from being lodged.
  • The Appellant had signed a COT3 in which they had agreed not to “reactivate by any process whatsoever the issues/complaints in the Proceedings or issue any further and/or new claim or claims of any nature against the Respondent …….. arising from or in relation the issues/complaints in the Proceedings or her employment to the date of this Agreement.”  There was also the usual carve out that “nothing in this Agreement shall prejudice any rights that the Claimant has or may have under the Public Interest Disclosure Act 1998.”  The employment judge held that it would be an abuse of process if the Appellant were permitted to relitigate the issues of whether her disclosures were ‘protected.  It was open to the Appellant to make further claims after the date of the COT3, but not ones which relied on issues which had already been decided, namely the original disclosures.  

The Appellant appealed to the Employment Appeal Tribunal (the EAT).

The EAT agreed that the employment judge had erred in the analysis of Rule 52. The further claims alleging new detriments did not raise the same, or substantially the same, ‘complaints’ for the purposes of rule 52, and the judge’s analysis of whether issue estoppel applied in the context of a summary judgment was not sufficient.  The reference to a ‘complaint’ in rule 52 is not to a part or ingredient of a claim but the claim in its entirety.  Just as a cause of action may contain many different conditions that need to be fulfilled, so a very different cause of action, which contains a common condition, cannot be correctly described as ‘substantially the same complaint.’  

However, the EAT held that the employment judge was correct in concluding that the new claims were an abuse of process, because they attempted to relitigate the issue of the same protected disclosures, which the Appellant had agreed were settled in a COT3 agreement.  In deciding this the EAT considered the following:

  • The Appellant had sought to rely on previous case law which referred to a settlement agreement under s203(3)(b) Employment Rights Act 1996 (ERA). This stated that any such agreement had to satisfy certain conditions, one being that it had to relate to particular complaints and could not extend to unforeseen and potential future complaints.  However, this case concerned a COT3 agreement which did not have the same conditions applied and did not contain the provision that the agreement must be limited to a particular complaint.
  • Under the terms of the settlement agreement the appellant agreed that she would not reactivate any issues or complaints.  The Appellant’s disclosures and whether they are protected was an issue in the proceedings. The Appellant could bring future claims but not to the extent that they reactivated these issues. 
  • The Appellant had entered into a warranty that she was not aware of any other facts or circumstances which might give rise to any claim by her other than those in the Proceedings.  Although she could not have been aware of the alleged detriments, she was aware of the issues which included the contested allegations. 
  • The Appellant also argued that she was not prevented by the wording of the COT3 as the agreement contained the clause carving out her rights under PIDA and that any interpretation to the contrary would be void by virtue of s43J ERA which renders void any term which purports to preclude a worker from making a protected disclosure.  The EAT held that the employment judge was correct in her conclusion as to why s43J was not relevant.  The terms of the COT3 did not preclude the Appellant from continuing to make disclosures or reiterating the previous ones, which may or may not be protected.

As a result, it would be an abuse of process to allow the Appellant to bring fresh proceedings relying on the same protected disclosures.

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