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EAT rules that COT3 agreement in whistleblowing case prevented subsequent claim for new detriments based on same disclosures

In the case of Ajaz V Homerton University Hospital NHS Foundation Trust the Claimant had settled a 2017 whistleblowing detriment case by way of COT3. Later in 2021, the Claimant issued a new whistleblowing detriment case in the ET relying upon the same protected disclosures, but incorporating new detriments which post-dated the COT3.

In the case of Ajaz V Homerton University Hospital NHS Foundation Trust the Claimant had settled a 2017 whistleblowing detriment case by way of COT3. Later in 2021, the Claimant issued a new whistleblowing detriment case in the ET relying upon the same protected disclosures, but incorporating new detriments which post-dated the COT3.

The ET struck the case out on the basis that rule 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 prohibits “a further claim…raising the same, or substantially the same, complaint“, and as an abuse of process on the grounds that the issue of the protected disclosures had already been settled by way of COT3, and the Claimant was thereby debarred from relitigating the issue.

The Claimant appealed. However, whilst the EAT held that the ET erred in relation to rule 52 (finding that a case incorporating new detriments did not raise the “same, or substantially the same, complaint“.

While the EJ erred in her analysis of the effect of rule 52, she had carefully considered, in the circumstances, the issue of whether the 2021 Claims were an abuse of process. She did not err in that analysis or in relation to the application of section 43J ERA. She did not fail to consider arguments about whether the Appellant was no longer bound by the terms of the COT3.

In the circumstances, the EJ’s error is not such that her decision to strike out the 2021 Claims is unsafe and should be set aside. The Appellant’s appeal was therefore dismissed on the basis that there is no basis for setting aside the EJ’s judgment.

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