Dr Sara Ajaz v Homerton University Hospital NHS Foundation Trust — 2022

The tribunal heard a preliminary strike out application in two conjoined claims under section 47B Employment Rights Act 1996. The claimant had previously brought a 2017 claim based on nine alleged protected disclosures, referred to in the judgment as the Original Disclosures. That first claim ended after the claimant withdrew it and Employment Judge Brown dismissed it on 21 February 2018 under Rule 52. The parties also signed a COT3 on 6 and 12 March 2018 after ACAS conciliation, which the tribunal read as a full and final settlement of the earlier proceedings, while paragraph 10 preserved the claimant's ability to make further public interest disclosures to regulatory or other appropriate statutory bodies.

The claimant did not say that she had made any additional protected disclosures in the later claims. The tribunal accepted the respondent's argument that the second and third claims were still based on the same Original Disclosures, even though they alleged new detriments. It held that the withdrawal and dismissal of the first claim had brought the claim components to an end and that the claimant was estopped from re-litigating whether the Original Disclosures qualified for protection. The tribunal also held that paragraph 4 of the COT3 prevented reactivation of the earlier issues and that, even if estoppel did not apply, it would be an abuse of process to permit re-litigation.

The tribunal referred to Clark v Middleton [2022] EAT 31 and treated a dismissal following withdrawal as having a clean sweep effect in relation to the proceedings, including the constituent parts of a section 47B claim. It therefore granted the respondent's application to strike out the claims. It did not need to determine the claimant's amendment application, and it did not decide whether the claims had reasonable prospects of success or whether a deposit order should be made.