The facts
In 2017 the Dr Ajaz brought several whistleblowing detriment claims based on nine protected disclosures made between 2011 and 2016. The claims were settled using an ACAS COT3. As part of the COT3, the detriment claims were withdrawn and dismissed by the tribunal under rule 52 of the Employment Tribunal Rules of Procedure 2013: “Where a claim……has been withdrawn under Rule 51, the tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claimagainst the respondent raising the same, or substantially the same, complaint”).
After the doctor returned to work, she alleged that she suffered further detriments. She brought two further detriment claims in 2021, based on the same 2011-2016 protected disclosures. Her employer, an NHS Foundation Trust, successfully applied to strike out the claims on two bases:
1) the claims had been withdrawn/dismissed in 2017 under Rule 52; and
2) that the new detriment claims were an abuse of process because they attempted to relitigate the issue of the same protected disclosures which Dr Ajaz had agreed were settled in the COT3 agreement.
The tribunal accepted that the new 2021 detriment claims brought by Dr Ajaz were inextricably linked to the original protected disclosures, which had been dismissed under Rule 52 in 2017. Further, because the protected disclosures had been the subject of a judgment by the tribunal in 2017, Dr Ajaz was “estopped” from bringing any claims which relied on them. The tribunal said the COT3 had acted as a final break in respect of Dr Ajaz’s whistleblowing claims based on the 2011-2016 protected disclosures.
Dr Ajaz appealed to the EAT who concluded that Rule 52 did not prevent her from bringing her new detriment claims but the COT3 did. In coming to this conclusion, the EAT found the following points important:
- Rule 52 refers to claims and complaints. The tribunal cannot dismiss a protected disclosure on withdrawal because it is not a claim or complaint. By contrast a detriment resulting from a protected disclosure is a claim which can be dismissed.
- Dr Ajaz was not re-opening a claim/complaint that had already been decided. The claim was for new and different 2021 detriments. As the 2021 detriments were substantively different from the old, dismissed detriments, she was not estopped from bringing new 2021 detriment claims under Rule 52.
- The ET 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 Dr Ajaz had agreed were settled in a COT3 agreement.
- Dr Ajaz’s 2021 detriment claims raised the issue of whether settlement documents, such as COT3s and settlement agreements, prevent individuals from bringing future claims where (a) the facts creating those claims came into being after the agreement, and (b) which the individual did not know about at the time of the agreement.
- COT3s are governed by different statutory provisions and different rules than settlement agreements and there is no authority that, to exclude future complaints a COT3 has to have any specific wording. In fact, previous case law indicates that quite generic wording can exclude future complaints.
- However the COT3 in this case did have specific wording. Dr Ajaz had agreed in the COT3 not to reactivate or relitigate “the issues/complaints in the Proceedings”, meaning the original 2017 tribunal proceedings. The word “issues” is broader than claims/complaints. The protected disclosures were not complaints or claims for the purposes of Rule 52, but were issues in the original, settled proceedings. By bringing new detriment claims that relied on the 2011-2016 protected disclosures, Dr Ajaz was in breach of the COT3.
What does this mean for employers?
This case is a reminder that whether future claims can be settled will always be fact specific. The claimant in this case was prevented from bringing her new claims because of the specific wording of the Acas COT3 where she settled "all issues" in the previous proceedings.
How a tribunal or court views a situation where an earlier claim is settled under a settlement agreement will be explored in next month's alert when we look at the Court of Appeal's decision in Bathgate v Technip Singapore PTE Ltd.
Dr Sara Ajaz -v- Homerton University Hospital NHS Foundation Trust [2023] EAT 142
