Dr Sara Ajaz v Homerton University Hospital NHS Foundation Trust

The Employment Appeal Tribunal considered the scope of rule 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and its relationship with the common‑law doctrines of res judicata, in particular issue estoppel and cause of action estoppel, in the context of claims under section 47B of the Employment Rights Act 1996 (detriments for protected disclosures).

The Tribunal held that rule 52 is narrower than the whole scope of res judicata: the phrase "the same, or substantially the same, complaint" in rule 52 refers to a claim (the complaint in its entirety) and not to an individual ingredient of a different claim. An Employment Judge therefore erred in treating rule 52 as automatically creating an estoppel preventing a later claim that relied upon the same alleged protected disclosures but alleged different, subsequent detriments.

However, the Employment Judge’s alternative conclusion — that the later claims were an abuse of process because the Appellant had settled and agreed not to relitigate the contested issues in a COT3 (and that those settlement terms did not offend section 43J ERA) — was correct. The COT3 had settled the contested issue whether the earlier disclosures were protected, and the Appellant had not shown she was released from the COT3 by accepting a repudiatory breach. The appeal was therefore dismissed.

Background and procedural history:

• The Appellant originally presented a claim in April 2017 (3200366/17) alleging detriments contrary to section 47B ERA arising from nine alleged protected disclosures. The 2017 claim was settled by an ACAS COT3 on 21 February 2018 and the claim was withdrawn and dismissed by the Employment Tribunal pursuant to rule 52.
• The Appellant remained employed and later presented two further claims in 2021 (claim nos. 3204536/21 and 3205965/21) alleging new detriments said to have arisen after the COT3, again relying on the same nine disclosures as the protected disclosures.
• The Respondent applied to strike out the 2021 claims. Employment Judge Elgot struck out the claims on 19 May 2022, relying principally on rule 52 and, alternatively, on abuse of process and the terms of the COT3. The Appellant appealed to the Employment Appeal Tribunal (permission granted by HHJ Barklem on 15 October 2022). The appeal was heard on 21 September 2023 and judgment given on 24 November 2023.

Nature of the claim and relief sought: The Appellant sought to pursue detriment claims under section 47B ERA for acts alleged to have been done on the ground that she had made protected disclosures. The immediate relief sought was to overturn the Employment Judge’s strike‑out order and permit the 2021 claims to proceed.

Issues for determination:

1. Whether rule 52 ET Rules prevented the Appellant from commencing the 2021 claims because the earlier 2017 claim had been withdrawn and dismissed;
2. Whether issue estoppel or cause of action estoppel (res judicata) barred the 2021 claims;
3. Whether the terms of the COT3 amounted to an unlawful restriction on making protected disclosures contrary to section 43J ERA;
4. Whether the Appellant had been released from the COT3 by reason of any alleged repudiatory breach by the Respondent.

Court’s reasoning and conclusions:

• Rule 52: the EAT concluded that rule 52 was intended to be narrower than the full common‑law doctrine of res judicata. The term "complaint" in rule 52 should be read as the entire claim (consistent with the definition in rule 1 of the ET Rules) and not as an individual factual or legal ingredient common to two different claims. Accordingly, the Employment Judge erred to the extent she treated rule 52 as automatically generating issue estoppel in the present circumstances.
• Issue estoppel: the EAT held that the Employment Judge’s analysis of issue estoppel was insufficiently explained. Although estoppel can, in some circumstances, arise from a dismissal following withdrawal, a careful analysis is needed to identify the precise issue decided and whether it was in fact determined by the earlier judgment. The Employment Judge’s reasoning on estoppel was cursory and undetailed.
• Abuse of process and COT3 construction: the EAT upheld the Employment Judge’s alternative conclusion that the 2021 claims were an abuse of process because the COT3 had, by its terms, settled and prevented relitigation of the contested issues in the 2017 proceedings (notably whether the disclosed matters were qualifying protected disclosures). The COT3 terms were not void under section 43J ERA because they did not prevent the Appellant from making protected disclosures in future; they settled the historic contested issue about whether the disclosures relied on in the 2017 claim were protected.
• Repudiatory breach: the Appellant had not pleaded or shown she had accepted any repudiatory breach of the COT3 that would release her from its terms, and the Employment Judge was not in error in declining to defer strike‑out on that ground.

Outcome: The appeal was dismissed: although the Employment Judge was wrong about the effect of rule 52, her alternative findings (that the 2021 claims were an abuse of process because of the COT3 and that section 43J did not render the settlement void) were upheld and the strike‑out decision was not unsafe.

The appeal is dismissed. The Employment Judge erred in treating rule 52 as giving rise to an automatic estoppel in these circumstances, because rule 52 is narrower than the full common‑law res judicata doctrine and the phrase "the same, or substantially the same, complaint" refers to the complaint as a claim in its entirety. However, the Employment Judge’s alternative conclusion that the 2021 claims were an abuse of process was correct: the COT3 had settled the contested issue whether the earlier disclosures were protected and its terms were not void under section 43J ERA. The Appellant had not shown she had accepted a repudiatory breach of the COT3, so she remained bound by its terms. For these reasons the strike‑out was upheld.

2017: Claim presented (3200366/17) and settled by COT3 on 21 February 2018; Employment Judge Brown dismissed the 2017 proceedings following withdrawal (21 February 2018). 2021: Two further claims presented (25 May 2021 and 17 September 2021). 16 December 2021: Respondent applied to strike out. 19 May 2022: Employment Judge Elgot struck out the 2021 claims. Permission to appeal to the EAT granted 15 October 2022 (HHJ Barklem). Appeal heard 21 September 2023; judgment handed down by the Employment Appeal Tribunal on 24 November 2023 ([2023] EAT 142).