A Darlington v London Borough of Islington

A COT3 agreement is construed objectively as a contract. The court must read its terms as a whole, in their factual and commercial context, but the precise words used remain decisive.

Clear and sufficiently specific wording may settle both existing and future claims, including a later whistleblowing detriment claim based on the same alleged protected disclosures. A release of claims against the employer arising from employment, its termination, or events after the agreement can extend to later alleged detriments causally connected with disclosures made during that employment.

The appellant had worked for the respondent at Hargrave Park School. She alleged that safeguarding concerns and a complaint to OFSTED were protected disclosures. After a negative reference led to the withdrawal of a job offer at another respondent-operated school, she entered a COT3 agreement with the respondent and Hargrave’s Governing Body.

The agreement settled all claims which she had or might have against the employer, including claims arising from employment, its termination, or events after the agreement. She later applied again for work at Westbourne Early Years Centre. When unsuccessful, she alleged a further detriment contrary to section 47B of the Employment Rights Act 1996.

The Employment Tribunal dismissed the claim for want of jurisdiction, holding that the COT3 barred it. The central issue was whether the agreement extended to that later alleged detriment.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the COT3 barred the appellant’s later claim against the respondent.

2. A COT3 agreement falls to be construed objectively, as any other contract. Its terms must be read as a whole, in the context of the parties’ relationship and facts known to them. The precise wording is of paramount importance, because each settlement turns on the language the parties used.

3. On the objective construction of clause 3, the agreement settled all existing and potential future claims against the respondent and the other specified parties that arose from the appellant’s allegation that she had made protected disclosures while employed at Hargrave and had suffered detriment as a result. The wording covered events after the agreement and was not confined to acts by Hargrave.

4. The parties knew that the appellant had applied for another respondent-operated role before the COT3 was executed. They were also to be taken to know that a section 47B claim could be made against a former employer. A further claim based on the same alleged disclosures was therefore within their reasonable contemplation.

5. In any event, the proposed claim arose from the appellant’s earlier employment because it necessarily depended on establishing that she had made protected disclosures during that employment. Clause 3 consequently excluded a later alleged detriment causally connected with those disclosures.

• Employment Appeal Tribunal: Appeal dismissed; the Tribunal’s jurisdictional dismissal was upheld.
• Employment Tribunal: Judgment dated 4 September 2023. Westbourne was held to have no separate legal personality, and the claim against the respondent was dismissed because the COT3 barred it.