Ajaz v Homerton University Hospital NHS Foundation Trust (2023)

The Claimant had settled a 2017 whistleblowing detriment case by way of COT3. Later in 2021, the Claimant issued a new whistleblowing detriment case in the ET relying upon the same protected disclosures, but incorporating new detriments which post-dated the COT3. The ET struck the case out on the basis that rule 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 prohibites "a further claim...raising the same, or substantially the same, complaint", and as an abuse of process on the grounds that the issue of the protected disclosures had already been settled by way of COT3, and the Claimant was thereby debarred from relitigating the issue. The Claimant appealed. However, whilst the EAT held that the ET erred in relation to rule 52 (finding that a case incorporating new detriments did not raise the "same, or substantially the same, complaint". Moreover, the judge "erred in concluding that the effect of rule 52 was to give rise to estoppel on the facts of this case; and her general analysis of issue estoppel was not sufficiently explained."), it agreed with the ruling that the 2021 case was an abuse of process. Accordingly, the error in relation to rule 52 was "not such that..[the]..decision to strike out the 2021 Claims is unsafe and should be set aside."