Is it an abuse of process for a Claimant, who had settled a whistleblowing detriment claim using a COT3 agreement, to attempt to bring fresh proceedings relying on the same protected disclosures but new detriments?
Yes, held the EAT in Ajaz v Homerton University Hospital NHS Foundation Trust.
The Claimant brought a claim in 2017 alleging that she had made protected disclosures and had been subjected to detriments as a result. This 2017 claim was settled through ACAS using a COT3 agreement, which included a term that the Claimant agreed not to ‘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’.
In 2021 the Claimant brought a new tribunal claim alleging that she had been subjected to new detriments (which post-dated the COT3) because of the same protected disclosures which had been alleged as part of the 2017 claim.
The EAT held that she was prevented by the terms of the COT3 from bringing a new claim which relied upon the same protected disclosures, even if the detriments were new.
The EAT held that to allow the 2021 claim to proceed would be an abuse of process.
The COT3 settled the ‘issues’ in the proceedings – not just the complaints. One of the issues in the 2017 claim had been whether the disclosures relied upon were protected disclosures. That issue had been settled by the COT3 so could not be re-litigated in a new claim, even if the new claim was alleging new detriments.
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