Workers subjected to a detriment for making a protected disclosure can settle their claim via an ACAS agreement. However, the Employment Appeal Tribunal (EAT) in Ajaz v Homerton University Hospital NHS Foundation Trust held that, if they do, any future claims not only have to post-date the ACAS agreement but also have to exclude the “integral parts” of the original complaint.
Basic facts
Ms Ajaz lodged a tribunal complaint in 2017 alleging that the Trust had subjected her to a series of detriments (poor treatment) between 2011 and 2017 for having made protected disclosures (blowing the whistle). She then agreed to withdraw the claim as part of an agreement mediated by ACAS, known as a COT3.
Clause 4 of the agreement stated that she would not “reactivate … the issues/complaints in the Proceedings or issue any further and/or new claim or claims of any nature against the [Trust] … arising from or in relation [to] the issues/complaints in the Proceedings or her employment to the date of this Agreement”.
Tribunal decisions
The tribunal dismissed the 2017 claim under rule 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 which prevents a claimant from starting another claim against that employer if it amounts to the “same, or substantially the same, complaint”.
In 2021, Ms Ajaz lodged a new tribunal claim alleging that the Trust had breached the terms of the COT3 by subjecting her to further detriments. Although these post-dated the agreement, they were predicated on the protected disclosures she alleged in 2017.
The Trust argued that her claim breached the terms of the COT3 and/or that she was prevented (or “estopped”) from relying on the same “ingredients” as the 2017 claim. Ms Ajaz pointed out that, if that were the case, the Trust could endlessly subject her to new detriments if they related to those same disclosures.
The tribunal judge struck out her claim holding that she was “estopped” by rule 52 from bringing another claim which relied on essentially the same elements as the previous one. In addition, it constituted an abuse of process as it breached the terms of the COT3. That did not mean she could not bring further claims after the date of the COT3, just that she could not rely on the issues which had already been decided.
EAT decision
The EAT held that the tribunal judge was wrong to equate the word “complaint” under rule 52 with an “ingredient” that was “necessary” or “essential”. She should not, therefore, have concluded that Ms Ajaz was “estopped” under rule 52 from raising new claims of detriment based on the same protected disclosures. In any event, the 2021 claims alleging new detriments did not raise the “same” or “substantially the same” complaints.
However, the EAT agreed with the judge that the 2021 claims were an abuse of process because they were an attempt to relitigate the same protected disclosures which Ms Ajaz had agreed were settled as part of the COT3 agreement.
Although nothing was to stop her from bringing future claims, she could not lodge a complaint that reactivated the “issues” or “complaints” that formed the basis of the earlier proceedings, even if the detriments were new. The employment judge was, therefore, correct to conclude that any future claims not only had to post-date the COT3 but also had to exclude the “integral parts” of the 2017 claims.
Comment
Going forward, this case may affect how settlements are drawn up into an agreement. Claimants should, therefore, give careful consideration as to whether the terms of their settlement include settling "issues" as well as complaints, as the former will be much wider than the latter.