Dr Sara Ajaz v Homerton University Hospital NHS Foundation Trust

A dismissal following withdrawal under rule 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 bars only a further claim raising the same, or substantially the same, complaint. It does not bar a later detriment claim merely because it relies on a protected disclosure which was an ingredient of the earlier claim.

Issue estoppel nevertheless requires analysis of what the earlier judgment actually decided. A COT3 may validly settle a disputed issue in earlier proceedings and prevent its relitigation in later claims, including claims based on later events. Such a term does not contravene section 43J of the Employment Rights Act 1996 where it does not prevent the worker from making or repeating protected disclosures.

The appellant, who remained employed by the respondent, withdrew a 2017 Employment Tribunal claim alleging detriments for protected disclosures after entering an ACAS COT3 agreement. The Tribunal dismissed that claim following withdrawal.

In 2021 she brought new claims under section 47B of the Employment Rights Act 1996. The alleged detriments post-dated the COT3, but she relied on the same nine alleged protected disclosures. Employment Judge Elgot struck out the claims, principally by reference to rule 52 and, alternatively, as an abuse of process under the COT3.

The appeal concerned the scope of rule 52, issue estoppel, the construction and validity of the COT3, and whether an alleged repudiatory breach released the appellant from it.

1. Appeal dismissed. The Employment Judge erred in treating rule 52 as preventing the 2021 claims merely because the alleged protected disclosures had been necessary ingredients of the 2017 claim. A “complaint” is the statutory claim as a whole, rather than an issue or ingredient within it. New alleged detriments therefore did not constitute the same, or substantially the same, complaint.

2. Rule 52 operates more narrowly than the general law of res judicata. The Tribunal also gave insufficient reasons for concluding that issue estoppel applied. Even where a withdrawal judgment can support issue estoppel, the Tribunal must identify the actual ground on which the earlier claim was rejected and whether that judgment decided the relevant condition. That analysis was especially necessary in a summary dismissal without consideration of the merits.

3. Those errors did not make the strike-out unsafe. On its proper construction, clause 4 of the COT3 settled both the complaints and the contested issues in the 2017 proceedings. Whether the appellant’s nine disclosures were protected was plainly such an issue. Later claims could be brought, but not insofar as they reactivated that settled issue. Clauses 8 and 9 did not qualify that restriction, and clause 10 preserved the ability to make future disclosures and professional reports, not a right to relitigate the protected status of the earlier disclosures.

4. The COT3 was not invalid under section 43J of the Employment Rights Act 1996. It did not preclude protected disclosures; it resolved a previously contested issue about whether identified disclosures were protected. The appellant had also neither pleaded the alleged repudiatory breach with sufficient particularity nor asserted that she had accepted any repudiation. The Employment Judge was not required to defer the strike-out decision on that basis.

• Employment Appeal Tribunal: dismissed the appeal and upheld the strike-out of the 2021 claims, although it found error in the Employment Judge’s rule 52 and issue-estoppel analysis: [2023] EAT 142.
• Employment Tribunal: Employment Judge Elgot, in reasons sent on 19 May 2022, struck out claims 3204536/21 and 3205965/21 on estoppel/jurisdiction grounds and, alternatively, as an abuse of process under the COT3.
• Employment Tribunal: Employment Judge Brown dismissed claim 3200366/17 following its withdrawal on 21 February 2018 after the parties entered the COT3.