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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ajaz v Homerton University Hospital NHS Foundation Trust (Practice and Procedure) [2023] EAT 142 (24 November 2023) URL: https://www.bailii.org/uk/cases/UKEAT/2023/142.html Cite as: [2023] EAT 142, [2023] WLR(D) 496, [2024] ICR 413 |
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Fetter Lane, London EC4A 1NL |
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B e f o r e :
____________________
DR SARA AJAZ |
Appellant |
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- and - |
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HOMERTON UNIVERSITY HOSPITAL NHS FOUNDATION TRUST |
Respondent |
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Ms Betsan Criddle KC, instructed by Hempsons, for the Respondent
Hearing date: 21 September 2023
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Crown Copyright ©
SUMMARY
Practice and Procedure
The Employment Judge erred in concluding that rule 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 prevented the Appellant from raising new claims of detriments pursuant to section 47B of the Employment Rights Act 1996, ('ERA'), after an Employment Judge had dismissed, on the Appellant's withdrawal, an earlier claim of different detriments, but based on the same protected disclosures. The further claims alleging new detriments did not raise the same, or substantially the same, complaints. The EJ's analysis of whether issue estoppel applied in the context of a summary judgment was not sufficient.
However, while the EJ was incorrect in her conclusions on the effect of rule 52, the ET was correct in concluding that the new claims were an abuse of process, because they attempted to relitigate the issue of the same protected disclosures, which the Appellant had agreed were settled in a COT3 agreement. The terms of that agreement were not void because of section 43J ERA. This was because the terms of the COT3 did not preclude the Appellant from making protected disclosures or from instituting further proceedings. Rather, they settled the previously disputed issue of whether the Appellant had made protected disclosures. The EJ did not err in failing to consider whether the Appellant was no longer bound by the terms of the COT3, in circumstances where she had never claimed to have accepted repudiatory breaches of those terms.
JUDGE KEITH:
Introduction
The litigation history
The relevant COT3 terms
"2. In accordance with rule 52 of the Regulations the parties confirm their understanding that the Proceedings will, following withdrawal by the Claimant, be dismissed."
"4. "The Claimant undertakes and agrees, subject to the exclusions from the waiver of claims in paragraph 7 [sic] hereof, that she will not reactivate by any process whatsoever the issues/complaints in the Proceedings or issue any further and/or new claim or claims of any nature against the Respondent or any of its current or former officers or employees in any forum arising from or in relation the issues/complaints in the Proceedings or her employment to the date of this Agreement."
"6. The Claimant further agrees to withdraw and not reinstate any of her past or current grievances and/or appeals howsoever arising against the Respondent and/or any current or former non-executive directors, employees, officers or agents of the Trust…"
"The terms of this Agreement are without any admission of liability and are accepted by the Claimant in full and final settlement of the Proceedings and any other claims anywhere in the world she may have and howsoever arising in connection with her employment up to the date of this Agreement. For the avoidance of doubt this clause 7 [sic] excludes any claims by the Claimant to enforce this Agreement, any latent personal injury claims which have not arisen and/or the Claimant could not reasonably have been aware of as at the date of this Agreement and any claims in relation to the Claimant's accrued pension rights/entitlements."
"Notwithstanding the waiver of claims in clause 7 [sic] of the Agreement the Claimant hereby warrants that she is not aware of any other facts or circumstances which might give rise to any claim by her other than those detailed in the Proceedings which she may have against either the Respondent or any of its current or former officers, or employees."
"For the avoidance of doubt, nothing in this Agreement shall prejudice any rights that the Claimant has or may have under the Public Interest Disclosure Act 1998 and/or any obligations that the Claimant has or may have to raise concerns about patient safety and care with regulatory or other appropriate statutory bodies pursuant to her professional and ethical obligations including those obligations set out In guidance Issued by regulatory or other appropriate statutory bodies from time to time."
The 2021 Claims
The Preliminary Hearing
The EJ's decision
"Mr Brittenden, on behalf of the Claimant, argues that she is not raising the 'same or substantially the same complaints' in the second and third claims because the alleged detriments are plainly different'.
First, Rule 51 refers clearly to the ending of any claim which is withdrawn. I am satisfied, as stated above, that the claims in the first claim have two inextricably inter-linked components (the qualifying disclosures and the consequent detriments). The claims consisting of both components have come to an end under Rule 51. Consequently, the withdrawal under Rule 51 means that a mandatory judgment under Rule 52 prevents a further claim, consisting of both such necessary components, from being lodged."
The Appellant's Appeal
The hearing before me
Ground (1)
The Appellant's submissions
"(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim"
The Respondent's submissions
Conclusions on ground (1)
"End of claim
51. Where a claimant informs the Tribunal, either in writing or in the course of a hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the respondent may make for a costs, preparation time or wasted costs order.
Dismissal following withdrawal
52. Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint) unless—
(a)the claimant has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or
(b)the Tribunal believes that to issue such a judgment would not be in the interests of justice."
"Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue."
"There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was."
Ground (2)
The Appellant's submissions
The Respondent's submissions
Conclusions on ground (2)
"(3) For the purposes of subsection (2)(f) the conditions regulating settlement agreements under this Act are that—
….. b) the agreement must relate to the particular proceedings…"
"Subsection (1)—
(e) does not apply to any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under any of sections 18A to 18C of the Employment Tribunals Act 1996"
Ground (3)
The Appellant's submissions
The Respondent's submissions
Conclusions on ground (3)
"(1) Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.
(2) This section applies to any agreement between a worker and his employer whether a worker's contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract."
"Can and may make new (or renewed) disclosures about what she believes to be ongoing public interest concerns where she also believes that she has suffered detriment as a consequence. She has agency in this respect. Paragraph 10 of the COT3 permits her to do this…"
"….Paragraph 10 simply preserves, in accordance with sensible public policy as well as protection of the individual claimant, that if she discovers additional matters of concern over and above the original disclosures, she is entitled to raise them and it is still open to her to do so (subject to jurisdictional time limits)."
Ground (4)
The Appellant's submissions
The Respondent's submissions
Conclusions on ground (4)
"In brief, part of the second claim is that the Claimant has been subjected to a detriment because she says that the Action Plan was not properly implemented according to the Objectives. She has not so far as I am aware sought to enforce the COT3 Agreement and obtain remedy by means of any breach of contract claim."
"That the fundamental breach would operate to release C from the restrictions in the COT3 Agreement. However, it would be inappropriate to address this at this P/h as it would involve consideration of evidence. It is also not appropriate to deal with that as a preliminary issue given the overlap with the other claims."
Summary