UK: COT3: Future claims
Authors: Stephen Miller, Corinna Harris, and Sophie Jackson
The Employment Appeal Tribunal has ruled that a COT3 barred a future whistleblowing detriment claim based on the same the protected disclosures.
Mrs Darlington raised safeguarding issues while employed by the London Borough of Islington (Islington) at Hargrave Park School (Hargrave). She said these were protected disclosures. After leaving, a job offered to her from another Islington-operated setting was withdrawn following a negative reference, which Mrs Darlington said was whistleblowing detriment.
This led to a claim and a COT3 settlement being reached, under which the reference was withdrawn and a new one provided. The agreement was drafted widely, settling “all existing and future claims” against Islington and the school, including claims arising after the agreement, and all claims under the Employment Rights Act 1996.
After the COT3 had been signed, a subsequent job application by Mrs Darlington was also unsuccessful despite the provision of the new reference. Mrs Darlington brought a fresh whistleblowing detriment claim, relying on the same disclosures. An Employment Tribunal found that the COT3 barred this claim. Mrs Darlington appealed to the Employment Appeal Tribunal (EAT).
The EAT decided that the intention of the COT3 was to settle all existing and potential future claims against Islington arising from Mrs Darlington’s allegation that she had made protected disclosures while employed at Hargrave and, as a result, was subject to detriment. The wording “whether arising from her employment with the Employer, its termination or from events occurring after this agreement” was clearly intended to exclude claims of future alleged detriment causally connected to the same previously alleged protected disclosures.
Viewed objectively, the agreement was intended to settle all claims – past and future – arising out of the alleged protected disclosures, including later alleged detriments. The wording clearly covered events occurring after the agreement, and there was no basis to limit its effect to one particular school or role, or point in time.
Key Action Points for Human Resources and In-house Counsel:
The decision confirms that a carefully drafted COT3 can bar future whistleblowing detriment claims based on the same protected disclosures, even if the new detriment happens later or in a different context. If the intention is to cover all whistleblowing issues arising from particular disclosures, the agreement should say so in clear terms, including language about future claims, claims arising from future events, and reference to the Employment Rights Act.
While the employer succeeded here, HR should still ensure post-settlement recruitment and referencing decisions are well-documented and defensible to avoid disputes escalating in the first place.
