The case of Darlington v London Borough of Islington [2026] EAT 11 has established that widely drafted waivers in a COT3 can effectively settle future claims even where someone is complaining about detriments occurring after the COT3 has been entered into.
Facts
The Claimant (AD) worked as an Early Years Educator at Hargrave Park School (the School), a maintained school operated by the London Borough of Islington. During her employment, AD raised safeguarding concerns and complained to Ofsted, which she said were protected disclosures. AD left the School on 25 May 2021.
In July 2021, AD applied for a job at Westbourne Early Years Centre (Westbourne), also operated by the London Borough of Islington. The School provided a reference that Westbourne deemed unsatisfactory and withdrew the job offer. AD issued the School with a letter before action, alleging that the reference was an act of detriment for her previously raising whistleblowing concerns about safeguarding.
The potential dispute was resolved pre-litigation and the parties entered into an Acas facilitated settlement via a COT3. The COT3 included a provision that the settlement was in ‘full and final settlement of all and any claims which the Employee has or may have in the future…whether arising from the employment…its termination or from events occurring after this agreement’.
The COT3 included an agreed reference, as is standard.
AD reapplied for the Westbourne role. The School provided the agreed reference. AD was again unsuccessful in obtaining the role.
AD presented a claim to the employment tribunal alleging that the rejection by Westbourne following a satisfactory reference was based on the same protected disclosures alleged in the letter before action.
At first instance the employment tribunal dismissed the claim for lack of jurisdiction on the basis that the COT3 prevented AD from bringing the claim. AD appealed the decision.
Decision
The Employment Appeal Tribunal (EAT) dismissed the appeal, upholding the decision of the employment tribunal.
The EAT held that the Employment tribunal had not erred in law. Objectively, the intention of the COT3 agreement was to settle all existing and potential future claims against the respondent and others arising from AD’s allegations that she had made protected disclosures whilst she was in the respondent’s employment at the first school and that, as a result, 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” was clearly intended to exclude claims in respect of future alleged acts of alleged detriment said to be causally connected to the same allegations of having previously made protected disclosures.
Key takeaways
This decision confirms existing principles in relation to the construction of settlement agreements, noting that such agreements are construed objectively based on the explicit wording of the agreement and the intention of the parties. The EAT has confirmed that future whistleblowing detriment claims can be barred even where the detriment occurs in another school operated by the same local authority. Importantly, if the alleged protected disclosures are the same, later detriment claims can be barred if the COT3 wording is sufficiently broad.
This is a timely reminder for employers of the importance of a carefully drafted settlement agreement or COT3. The EAT has confirmed that the express wording of any such agreement is paramount. It is essential for schools and MATs to be aware of the risks associated with agreeing to narrow wording in a settlement agreement or COT3.
We often see schools and MATs using inadequate COT3 and settlement agreements that are either outdated or too simple to properly settle a dispute and waive all claims. Any COT3 provided by Acas will not fit for purpose and will ordinarily cover only the bare minimum terms to document the agreement reached. This is unlikely to protect the school and MAT from future legal action by the same individual.
Any settlement agreement or COT3 must be specifically drafted having regard to the facts and legal advice should be sought.
The decision is a useful validation that broad drafting of such a compromise clause can be effective. However, it must be intentionally drafted to avoid future claims or detriments to successfully protect the employer.
This briefing is not intended to be a definitive statement of the law and is correct at the time of publication. It should not be taken as a substitute for professional legal advice. It does not represent the views of Winckworth Sherwood or any of the authors.