In the recent case of Darlington v London Borough of Islington, the Employment Appeal Tribunal considered the scope of settlement agreements and whether they can prevent employees from bringing future whistleblowing detriment claims related to past disclosures.
Background
Mrs Darlington was employed by the London Borough of Islington (LBI) as an Early Years Educator at Hargrave Park School (Hargrave). During her employment, she raised safeguarding concerns and complained to Ofsted about practices at the school, which she asserted were protected disclosures.
After leaving Hargrave in May 2021, Mrs Darlington applied for a role at another school run by LBI, Westbourne Early Years Centre (Westbourne). She was offered the position, subject to a satisfactory reference from Hargrave. The reference provided was unsatisfactory, and as a result, her conditional offer was withdrawn in August.
Mrs Darlington argued that the reference was misleading and was a result of the protected disclosures she made during her employment at Hargrave. Following a letter before action and subsequent negotiations, LBI, the Governing Body of Hargrave and Mrs Darlington entered into a COT3 agreement, facilitated by ACAS, in September.
Before the COT3 was signed by any of the three parties, Mrs Darlington reapplied for the role at Westbourne. After the COT3 had been signed, her subsequent job application was also unsuccessful, despite the new positive reference.
Mrs Darlington then brought a claim in the Employment Tribunal against Westbourne and LBI, alleging that the failure to appoint her amounted to an unlawful detriment arising from the protected disclosures she had made during her time at Harborne. She argued that the COT3 was only intended to compromise her claim against Hargrave and should not prevent her from being able to sue other schools operated by LBI, should these claims arise in the future.
The EAT’s decision
The EAT considered whether they had the jurisdiction to hear a detriment claim relating to disclosures already settled in the COT3 and whether the agreement’s express inclusion of “future claims” prevented the new detriment claim.
The Appeal Tribunal reaffirmed the principle that any challenge to a settlement agreement will ultimately turn on the precise wording used. In this case, the wording: “whether arising from her employment with the Employer, its termination or from events occurring after this agreement” clearly intended to exclude claims of future alleged detriment linked to the same protected disclosures previously alleged.
The COT3 intended to settle all existing and future claims against LBI and others arising from Mrs Darlington’s claims that she had made protected disclosures and suffered detriment as a result.
Accordingly, the EAT dismissed Mrs Darlington’s appeal.
Key takeaways
This decision highlights the importance of clear drafting in settlement agreements to waive future claims.
In practice, many settlement agreements include blanket waivers, relying on standard precedent wording, which may be overly broad, insufficiently precise or not properly tailored to the specific dispute. As a result, they may fail to achieve the intended level of protection from future claims.
Employers can significantly strengthen their protections against future whistleblowing detriment claims linked to historic disclosures by ensuring that settlement terms are drafted in clear and unambiguous language.
Explicit wording can exclude future claims, including detriments occurring after the agreement, provided those claims arise from the same alleged protected disclosures. Careful drafting that clearly references future claims and events occurring after the agreement will help ensure the agreement achieves a genuine clean break for both parties and prevents later litigation.
For further advice on settlement agreements, or any other employment issue, please contact a member of our team: employment@wslaw.co.uk.