COT3 agreements and future whistleblowing claims

Mrs Darlington worked as an Early Years Educator at a school run by Islington Borough Council. She was employed by the Council and whilst working at Hargrave Park School, she raised safeguarding issues and made complaints to OFSTED. She maintained that these were protected whistleblowing disclosures. After leaving Hargrave, a job offer at another school (Westbourne Early Years Centre) also run by the Council was withdrawn following a negative reference. Mrs Darlington alleged that this was because she had made protected whistleblowing disclosures.

This led to the Council and the school’s governing body entering into a COT3 agreement with Mrs Darlington which provided for an agreed reference and was stated to be in full and final settlement of all claims against the Council and the school arising out of her employment or its termination, or from events occurring after the agreement had been entered into.

After the COT3 had been signed, a further job application Mrs Darlington had made to Westbourne was also successful, despite the new reference being provided. She again argued this was because she has made protected whistleblowing disclosures whilst at Hargrave and she brought another whistleblowing detriment claim against the Council.

The Employment Appeal Tribunal agreed with the employment tribunal that the claims was barred by the COT3. The intention of the COT3 was to settle all existing and potential future claims against the Council arising from the allegation that she had made protected disclosures whilst employed at Hargrave and, as a result, was treated detrimentally. This was clear from the wording and the context in which the Agreement came to be concluded. At that point both Mrs Darlington and the Council knew that she had applied for another role at Westbourne and they must have reasonably contemplated that a further complaint against the Council might be brought based on the same protected disclosures if her application was unsuccessful.

Implications for schools

• A well-drafted COT3 or settlement agreement can protect a school against future claims
• This includes future whistleblowing detriment claims tied to historic whistleblowing disclosures provided clear and unambiguous wording is used
• This causes potential difficulties for staff employed in maintained schools and academy trusts who may be re-employed by the same employer when they move jobs. State schools and multi-academy trusts can expect to receive requests for agreements to be made more limited in scope.