Where an employee brings an employment tribunal claim (or potential claim), the employee and employer may reach settlement following conciliation by a conciliation officer employed by Acas. The form used to record this settlement is known as a “COT3”.
In a recent Employment Appeal Tribunal case, a doctor employed by an NHS trust brought whistleblowing detriment claims against the hospital trust. She settled the claims under a COT3 under which she agreed that she would not issue any further claims arising from or in relation to the issues/complaints in the proceedings. The doctor brought further whistleblowing claims. The tribunal struck out those claims under the Employment Tribunal Rules (‘the ET Rules’) on the basis these had been settled under the COT3 and the doctor was prevented from bringing the further claim. The doctor appealed.
The Employment Appeal Tribunal held that the original tribunal had correctly concluded that the further whistleblowing claim was an abuse of process because it attempted to relitigate the issue of whether the employee had made protected disclosures under the whistleblowing claim. The COT3 wording had settled not just the "complaints" but also the "issues" in the original whistleblowing claims; including the contested issue of whether or not the claimant’s disclosures were protected. This issue was an integral part of the original claim that had been settled.
Whilst the employee clearly disputed this was its effect, the Employment Appeal Tribunal’s wide interpretation of the wording of the COT3 (that it also settled the “issues” in the claim) effectively meant the employee was unable to bring any claims for future whistleblowing detriments (including dismissal) arising out of the same alleged protected disclosures.
Although the Employment Appeal Tribunal found in the employer’s favour, the case is a reminder that when employers wish to settle employment disputes with employees, the wording of the settlement agreement or agreement negotiated via ACAS should be drafted with care, so that it prevents employees having a ‘second bite of the cherry’ and seeking to bring further claims in relation to disputes that have been settled.