The Employment Appeal Tribunal considered this issue in Darlington v London Borough of Islington, offering useful direction on how far a settlement can prevent employees from bringing future claims they were unaware of at the time of the agreement. The decision is particularly relevant where the employer is a local authority rather than an individual school.
Employees can only waive statutory employment claims, such as whistleblowing detriment, discrimination, or unfair dismissal, through either a COT3 agreement reached via the Advisory, Conciliation and Arbitration Service (ACAS), or a settlement agreement that meets statutory requirements.
A COT3 becomes legally binding once the parties clearly accept its terms, even if it has not been signed. A settlement agreement, by contrast, must satisfy formal conditions, including the employee receiving independent legal advice and the document being properly signed.
Ms Darlington, an early years educator at Hargrave School, raised safeguarding concerns and complained to OFSTED, which she said were protected disclosures. After leaving the school, she applied for a role at another school within the same local authority. The offer was withdrawn following an unfavourable reference from her earlier employer.
Following ACAS conciliation, the parties entered into a COT3 agreement requiring the school to retract the reference and provide a new one. The agreement also settled: “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.”
Ms Darlington later reapplied for the role but was unsuccessful. Believing this was due to her earlier disclosures, she brought a new whistleblowing detriment claim.
The Employment Appeal Tribunal held that the claim was barred by the COT3. A settlement agreement can validly prevent future claims that were not specifically expected, provided the wording is clear and specific. The tribunal emphasised that the local authority was the legal employer and a party to the agreement. Because the authority operated both schools, the broadly drafted wording was intended to settle all claims connected with Ms Darlington’s earlier protected disclosures, including those arising after the agreement.
The case illustrates the wide scope that COT3 agreements can have when broadly drafted. If Ms Darlington had wanted to preserve the right to bring claims against other schools within the same authority, this would have needed to be expressly carved out of the agreement. However, the settlement did not prevent her from making future protected disclosures; it only barred claims arising from the earlier ones.
If you need any further advice and help, please do not hesitate to contact the Quest HR Advice Line on 01455 852028.
