Abuse of Process

Is it improper for a claimant who used a COT3 agreement to settle a claim of whistleblowing to try to initiate new legal action utilising the same protected disclosures but different detriments?

A COT3 is much like a settlement agreement but settles claims being brought at the Employment Tribunal.  Most settlements agreed through ACAS are in the form of a COT3 (albeit solicitors will often – though not always – get involved in drafting the wording). 

In 2017, the claimant filed a claim at the Employment Tribunal, claiming that she had suffered consequences as a result of her protected disclosures. A COT3 agreement was used to resolve this 2017 dispute through ACAS, and it had a clause stating that the claimant would not “issue any further and/or new claim or claims of any nature against the Respondent… arising from or in relation to the issues/complaints in the Proceedings.”

The Claimant then filed a new tribunal claim in 2021, claiming that the same protected disclosures that had been asserted in the 2017 claim had caused her to suffer fresh harms that were not covered by the COT3. Even though the damages were new, the Employment Appeal Tribunal (“EAT”) determined that she was barred from bringing a new claim that relied  on the same protected disclosures due to the terms of the COT3. According to the EAT, it would be an abuse of process to accept the 2021 claim.

Not just the complaints, but also the “issues” in the procedures were resolved by the COT3. Whether the disclosures that were cited in the 2017 claim were protected disclosures was one of the questions raised. Even if a new claim claimed additional harms, it could not re-litigate that issue since it had already been resolved by the COT3.

It is always advisable to take legal advice on the terms of settling any claims, whether in the guise of settlement agreements or COT3.  

We are experienced in advising on drafting and negotiating claims, both prior to them reaching a Tribunal and afterwards.  If you would like assistance with such matters, our Employment Law team can help.

Contact our Head of employment, Ilinca Mardarescu on imardarescu@astonbond.co.uk