Transcription

• Speaker #0

  Today in the Indicator HR and Employment Law podcast, we're discussing the judgment in the case of Darlington and London Borough of Islington, in which the Employment Appeal Tribunal was asked to consider whether a new whistleblowing claim was barred, because it was based on the same protected disclosures that had resulted in an earlier COP3 settlement. In this case, D worked as an early years educator in council-run schools. D was employed by the local authority at one of its schools, Hargrave, until May 2021. During this employment, she raised a safeguarding issue and complained to Ofsted about practices at the school, which she argued were protected whistleblowing disclosures. In July 2021, she was offered a job at another of the local authority's early years centres, Westbourne, subject to satisfactory references. The Westbourne job offer was subsequently withdrawn after the reference provided by Hargrave was deemed unsatisfactory. Dee considered that the Hargrave reference was misleading and inaccurate. and considered this was motivated by her protected disclosures during her time at the school. D threatened to commence a legal claim, and following negotiations via ACAS, a settlement was agreed and recorded in a COP3, the parties to which were Dee, Hargrave's governing body and the local authority. The COT3 provided that Hargrave would provide an agreed reference for Dee in the future. The settlement agreement said it was in full and final settlement of all and any claims which D has or may have in the future against the school, the employer or any of its governors, officers or employees, whether arising from the employment with the employer. Its termination or from events occurring after this agreement has been entered, including, but not limited to, claims under the Employment Rights Act 1996. D reapplied for the Westbourne job, was interviewed and asked to provide references. Although Hargrave supplied the agreed reference, D was ultimately told her application was unsuccessful. D sought to bring a new claim against the local authority in which she alleged that she had been subjected to detriment on the ground of the same whistleblowing disclosures. The Employment Tribunal held that the COT3 barred her from bringing such a claim De appealed. The Employment Appeal Tribunal dismissed her appeal and held that the Tribunal had not erred in law. Objectively, the intention of the COT3 agreement was to settle all existing and potential future claims against the local authority, and others arising from D's allegations that she had made protected whistleblowing disclosures while she was in the local authority's employment at Hargrave and that, as a result, she had been subject to detriment. The use of the words, whether arising from her employment with the employer, its termination, or from events occurring after this agreement in the COT3, was clearly intended to exclude claims in respect to future alleged acts of alleged detriment, said to be causally connected to the fact that she was in the local authority's employment at Hargrave to the same allegations of having previously made protected disclosures. Look out for further episodes in this series to stay up to date on all things HR and employment law related.