Key takeaways
COT3 covered future detriment claims
The agreement’s broad wording encompassed future acts linked to same whistleblowing disclosures.
New claim connected to old disclosures
The alleged detriments arose from the same safeguarding whistleblowing concerns.
EAT confirmed new whistleblowing claim was barred
Tribunal correctly held the COT3 prevented further whistleblowing litigation against same employer.
Where an employment claim is settled via Acas conciliation, a COT3 agreement is prepared to record the terms of the settlement. The EAT has recently considered whether a new whistleblowing claim was barred because it related to the same protected disclosures as an earlier COT3 settlement.
D was employed until May 2021 at Hargrave, a local authority run school. During her time at the school she raised a safeguarding issue and complained to OFSTED (she argued these complaints were protected whistleblowing disclosures). In July 2021, she was offered a job (subject to satisfactory references) at Westbourne, another of the local authority’s education centres. However, this job offer was subsequently withdrawn after the reference provided by Hargrave was deemed unsatisfactory. This caused D to threaten to commence an employment claim, on the basis that Hargrave had given her a misleading and inaccurate reference because of her alleged protected disclosures. Following negotiations via Acas, a settlement was agreed and recorded in a written COT3 (signed by D, Hargrave’s governing body and the local authority). The COT3 said it was in full and final settlement of all and any claims which D 'has or may have in the future…whether arising from the employment…its termination or from events occurring after this agreement has been entered…', and required Hargrave to provide an agreed reference for D in the future.
Following this COT3 settlement, D reapplied for the Westbourne job, was interviewed and was asked to provide references. Although Hargrave supplied the agreed reference, as required by the COT3, D was nevertheless told that her job application was unsuccessful. D sought to bring a new employment claim against the local authority, alleging that she had been subjected to new / further detriments on the ground of the same whistleblowing disclosures. The employment tribunal dismissed that claim, holding that it was barred by the earlier COT3. D appealed.
The EAT dismissed D’s appeal and held that the tribunal had not erred in law. The clear intention of the COT3 agreement was to settle of all existing and potential future claims against the local authority and others arising from D’s allegations that she had made protected whistleblowing disclosures whilst she was employed at Hargrave and that, because of those whistleblowing disclosures, she had been subject to detriment. The wording of the COT3 was clearly intended to exclude claims in respect of future alleged acts of detriment that are causally connected to D’s previous alleged protected whistleblowing disclosures during her time at Hargrave.
