Written by The EAT decision in Mrs A Darlington v London Borough of Islington is an orthodox application of COT3 construction principles. Its wider significance lies in the gap it exposes: Parliament has created a sectoral recruitment-stage whistleblowing shield for NHS applicants, but not for workers in regulated early-years settings.
Publication snapshot
- The EAT dismissed the appeal and held that the broadly worded COT3 barred the later section 47B detriment claim.
- The later detriment was alleged to arise from protected disclosures made before the COT3 was concluded.
- The decision sits within the orthodox COT3 authorities, particularly Ajaz, Arvunescu, Howard and BCCI v Ali.
- The policy issue is not whether the EAT was doctrinally adventurous, but whether Part IVA should contain stronger protection against settlement wording in regulated safeguarding sectors.
Why Darlington matters
The Employment Appeal Tribunal’s decision in Mrs A Darlington v London Borough of Islington is, on first reading, a quietly orthodox application of the consolidated case law on the construction of Acas-conciliated settlements.
A worker in a regulated early-years setting raised safeguarding concerns and made protected disclosures during her employment. Her employment ended in May 2021. A COT3 was concluded with her employer in September 2021 following Acas conciliation. The detriment that founded the later claim was an unsuccessful application to a different early-years setting within the same local authority. That detriment occurred shortly after the COT3 had been signed and was alleged to have been caused by the protected disclosures already made.
The Employment Tribunal held that the COT3 barred the later claim. Lord Fairley, sitting as President of the EAT, dismissed the appeal.
The legal interest is structural
The doctrinal interest of the decision is not that the EAT went too far. On the consolidated COT3 authorities, including Ajaz v Homerton University Hospital NHS Foundation Trust, Bathgate v Technip UK Ltd and Arvunescu v Quick Release (Automotive) Ltd, the result is orthodox. The wider interest lies in the protection gap exposed by that orthodoxy.
Parliament has addressed that gap in one regulated sector: NHS recruitment after protected disclosures. It has not done so for the regulated early-years sector. The Court of Appeal has now confirmed that the gap is one for Parliament rather than the courts. The Education Committee is, in parallel, asking whether whistleblowing protection in early-years settings is adequate.
That is the context in which the practitioner-facing question must be answered: what does a worker in a regulated safeguarding sector now need to know about the reach of a COT3 over later section 47B Employment Rights Act 1996 claims?
Facts and procedural history
The facts are set out in the EAT judgment and in the underlying Employment Tribunal decision before Employment Judge Tobin.
The Appellant was employed as an Early Years Educator at a school operated by the Respondent local authority, with responsibility for the care and education of babies and toddlers in a council-run early-years setting. During her employment, from 1 September 2020 to 25 May 2021, she raised a safeguarding concern internally and complained to Ofsted about practices at the school. She maintained that those complaints were protected disclosures within section 43B Employment Rights Act 1996. Ofsted is a prescribed person for those purposes.
Following the issue of an unsatisfactory reference in connection with her departure, the Appellant applied for a position at a different early-years centre operated by the same Respondent on 4 July 2021. She was offered the position on 19 July 2021, subject to a satisfactory reference. The offer was withdrawn on 9 August 2021 after the original school provided what the Appellant maintained was a misleading and inaccurate reference, given on her case because of her protected disclosures.
A letter before action was sent. Following Acas conciliation, a COT3 was concluded between the Appellant, the Governing Body of the original school and the Respondent, and signed on 20, 21 and 22 September 2021.
The operative settlement wording
The COT3 was expressed to be in full and final settlement of all and any claims which the Appellant had or might have in the future against the school, the employer or any of its governors, officers or employees, whether arising from the employment, its termination, or from events occurring after the agreement, including claims under the Employment Rights Act 1996.
Three days before the COT3 was concluded, on 13 September 2021, the Appellant re-applied for the position at the second early-years centre. She was interviewed on 28 September 2021. A new reference was issued in line with the COT3, in positive terms. She was nevertheless not appointed and was informed of that decision on 20 October 2021.
The Appellant brought a section 47B detriment complaint on 17 February 2022 following Acas Early Conciliation between 15 December 2021 and 25 January 2022. The Respondent challenged jurisdiction on the basis of the COT3. At first instance, Employment Judge Tobin held that the COT3 was effective to bar the claim. The preferred construction was that the operative words of clause 3 captured later detriments arising from the protected disclosures already made. In the alternative, even on the narrower construction urged by the Appellant, claims arising from her employment fell within the agreement’s exclusion.
The appeal was heard by Lord Fairley, President of the EAT, on 13 January 2026. The Appellant was represented by Mr Jamie Susskind. The Respondent was represented by Mr Alexander Line. The appeal was dismissed.
The COT3 reasoning
Three points of doctrinal interest emerge from the EAT’s reasoning.
Ajaz was central
Ajaz is the close EAT authority for the pattern in Darlington: a later detriment claim founded on protected disclosures made before a conciliated settlement. The EAT in Darlington aligned its reasoning with Ajaz, treating the later claim as one that could not be advanced without reopening matters inherent in the earlier settlement.
Construction remained objective
The EAT applied ordinary contractual construction principles. It cited BCCI v Ali, Howard and Arvunescu, and treated the precise wording of the COT3 as paramount, read objectively and in context.
Public-interest policy did not override the wording
The Appellant’s reliance on the public-interest character of Part IVA Employment Rights Act 1996 did not displace the construction the EAT preferred. The agreement expressly referred to Employment Rights Act claims and events occurring after the agreement.
Ajaz and the relitigation problem
Ajaz v Homerton University Hospital NHS Foundation Trust was the key authority for the structural question raised by Darlington. The claimant in Ajaz had settled whistleblowing detriment claims by COT3. Later claims were then advanced, founded on the same protected disclosures. The EAT held that the COT3, properly construed, captured the later claims because they could not be advanced without reopening issues inherent in the earlier conciliated settlement, including the protected status of the disclosures.
Lord Fairley’s reasoning in Darlington is expressly aligned with that approach. The dispute settled by the COT3 included whether the Appellant had made protected disclosures at all. A later claim depending on those disclosures therefore engaged the earlier settlement wording.
The construction architecture
The EAT’s approach was not mechanical or purely literal. The Court cited Bank of Credit and Commerce International SA v Ali for the orthodox proposition that an Acas-conciliated agreement is construed in the same way as any other contract, with the court seeking to give effect to the parties’ objectively ascertained intentions.
It cited Royal National Orthopaedic Hospital Trust v Howard for the importance of the precise wording of an employment settlement release. It cited Arvunescu v Quick Release (Automotive) Ltd for the proposition that broadly worded COT3 language can cover claims not specifically contemplated by the parties where the agreement embraces claims the worker “has or may have” and the underlying purpose is to settle existing claims connected with the employment.
The wider structural background is more complicated. The EAT in Bathgate v Technip UK Ltd drew an important distinction between statutory settlement agreements regulated by section 203 Employment Rights Act 1996 and section 147 Equality Act 2010, on the one hand, and Acas-conciliated settlements on the other. The EAT’s decision was reversed in part by the Inner House of the Court of Session, but that decision binds in Scotland and is persuasive only in England and Wales. On the present record, there is no English appellate authority adopting it.
For present purposes, the practical point is clear. An Acas-conciliated COT3 is not inherently incapable of foreclosing future statutory claims. The question is one of objective construction.
Specificity, public policy and Part IVA particularisation
The Court of Appeal in Hinton v University of East London held that statutory employment claims being compromised must be identified with sufficient particularity, either by statutory provision or by adequate generic description. Pure blanket-release language is not enough.
The EAT in Lunt v Merseyside TEC supplied the broader statutory-policy concern: Parliament did not intend employees to sign away tribunal rights prospectively or on a purely speculative basis. These authorities operate together as a sliding scale. The more extraordinary the asserted waiver, the more exact the drafting must be.
On the construction preferred in Darlington, the operative words of clause 3 were sufficient. They referred expressly to claims under the Employment Rights Act 1996 and to events occurring after the agreement.
The first-instance Employment Tribunal decision in Fung v Chief Constable of Greater Manchester Police is significant by contrast. In the Equality Act context, the Tribunal applied the section 147(3)(b) “particular complaint” requirement to limit a settlement that, on its face, extended to claims arising after the settlement date. Fung is not binding authority, but it illustrates the kind of statutory brake that Part IVA does not contain.
There is no Part IVA analogue to the section 147 Equality Act 2010 “particular complaint” requirement, and the section 203 Employment Rights Act 1996 “particular proceedings” requirement does not apply to Acas-conciliated COT3s. That creates a structural asymmetry. A discrimination claim may have a statutory route out of over-broad settlement wording. A section 47B whistleblowing detriment claim, on the same fact pattern, may not.
Part IVA is not silent on particularisation. In Metcalf v Surrey County Council, the EAT held that tribunals must identify each alleged protected disclosure by date and content, and each alleged detriment by date and content, rather than treating multiple matters as an undifferentiated mass. Metcalf therefore supplies a particularisation discipline at the merits stage. That discipline does not, however, migrate into the construction of broadly worded Acas-conciliated COT3 wording.
The synthesis is that Darlington applies an orthodox line of authority. The harder question is not doctrinal error. It is whether the statutory counterweights of specificity, particularisation and public-interest policy should bite more strongly in the whistleblowing settlement context.
The sectoral protection gap
The structural interest of Darlington becomes apparent when the decision is read alongside the comparative architecture of Part IVA Employment Rights Act 1996 in respect of NHS workers.
Section 49B Employment Rights Act 1996 is a sectoral anti-blacklisting provision. It empowers the Secretary of State to make regulations prohibiting NHS employers from discriminating against an applicant where it appears that the applicant has made a protected disclosure. The substantive prohibition is contained in the Employment Rights Act 1996 (NHS Recruitment — Protected Disclosure) Regulations 2018.
Those Regulations create a recruitment-stage prohibition on detriment, a self-standing tribunal complaint, three-month time limits, compensation and recommendation remedies, vicarious-liability rules and a parallel action for breach of statutory duty. Where a worker has made a protected disclosure during employment with one NHS body and is later disadvantaged in respect of an application to a different prescribed NHS body, section 49B and the 2018 Regulations provide a direct sectoral route.
There is no equivalent protection across the regulated economy.
Early years and safeguarding
The early-years sector in which Darlington arose operates within a comparable safeguarding architecture. The Childcare Act 2006, the EYFS statutory framework and Working Together to Safeguard Children 2023 together impose statutory and quasi-statutory safeguarding obligations on providers. Those obligations are supplemented by Ofsted’s regulatory regime and by childcare-disqualification consequences arising from safeguarding-related convictions.
In September 2025, the EYFS framework was amended to introduce a positive whistleblowing requirement on providers. Providers must put appropriate whistleblowing procedures in place for all staff, including students and volunteers.
The structural point follows. A worker in the regulated early-years sector who is dismissed, or who leaves, after safeguarding disclosures and later applies for a position in a different early-years setting has no equivalent to the section 49B and 2018 Regulations shield.
NHS recruitment
Section 49B and the 2018 Regulations create a specific recruitment-stage route where an applicant is disadvantaged because it appears they made a protected disclosure.
Early-years recruitment
The sector has safeguarding duties and a positive whistleblowing-procedure requirement, but no equivalent recruitment-stage whistleblowing protection.
Sullivan and Tiplady
The Court of Appeal has confirmed in Sullivan v Isle of Wight Council that the statutory gap is a matter for Parliament. The Court dismissed an appeal by an external applicant who argued that the Part IVA architecture, read with Article 14 and Article 10 of the European Convention on Human Rights, should extend to external applicants outside the NHS.
The Department for Business and Trade and Protect intervened. The Court held that an external applicant outside the NHS was not in an analogous position to internal workers or to NHS applicants under section 49B for Article 14 purposes, and that the Part IVA architecture was compatible with the Convention.
Sullivan is the appellate counterpart to the foundational reasoning in Tiplady v City of Bradford Metropolitan District Council, where the Court of Appeal held that Part IVA detriments must be suffered in the worker-employer field rather than in some other personal capacity.
Together, Tiplady and Sullivan lock the structural-gap argument into appellate-level case law. Reform, if it is to come, will not come from the courts.
The Select Committee context
Darlington was decided in a live parliamentary context that bears directly on its policy reception.
On 17 December 2025, the House of Commons Education Committee expanded its inquiry “Early Years: Improving Support for Children and Families” with a specific safeguarding limb following recent high-profile cases of child abuse in nursery settings.
The expanded terms of reference included an explicit question on the adequacy of whistleblower protection in early-years settings: whether there is sufficient clarity, awareness and dissemination of information to encourage whistleblowing, and sufficient awareness among providers of the requirements to protect whistleblowers in early-years settings.
The submission deadline was 16 January 2026, three days after the EAT hearing in Darlington. The Committee published written evidence submissions on 10 March 2026 under the EYS reference series.
Education Committee expands its early-years inquiry to include safeguarding and whistleblowing protection.
The EAT hears the appeal in Darlington.
Committee submission deadline closes.
Written evidence submissions are published under the EYS reference series.
The Education Committee’s inquiry is not a judicial body and its conclusions will not bind a later tribunal or court. But the timing is structurally significant. A regulator-facing safeguarding architecture is being tightened by amendment to the EYFS framework. A parliamentary committee is examining whether the worker-protection counterpart needs strengthening. In the meantime, an orthodox EAT decision confirms that workers in the same regulated sector may remain exposed where broad COT3 wording captures later detriments connected to earlier protected disclosures.
The three currents do not run together.
The reform question
The reform question is not whether Darlington was wrongly decided. On the orthodox COT3-construction line, it was decided as the authorities directed. The question is whether that orthodox line should be allowed to operate against the public-interest architecture of Part IVA without legislative correction.
Three contracting-out brakes already exist. None reaches the pattern in Darlington.
Section 203 ERA 1996
Section 203 makes void contractual provisions that exclude or limit rights under the Act or preclude tribunal proceedings. But the carve-outs for compliant settlement agreements and Acas-conciliated settlements take a properly formed COT3 outside the prohibition.
Section 43J ERA 1996
Section 43J voids terms that purport to preclude a worker from making a protected disclosure. It targets gagging clauses. It does not, on its current wording, catch settlement language releasing future detriment claims arising from disclosures already made.
Whistleblowing guidance
The public-interest disclosure framework makes clear that settlement clauses preventing protected disclosures are unenforceable. That principle concerns the making of disclosures, not the later foreclosure of detriment claims.
The closest tribunal-level support for a freestanding common-law public-policy line is Clifford v IBM UK Ltd, where the Tribunal observed that settling claims for wrongful conduct that may happen after the agreement would offend public policy by leaving the worker without remedy for future wrongdoing. That observation was qualified to future wrongs not yet occurred at the date of settlement. It does not, on the present record, establish settled doctrine or directly resolve the Darlington pattern of disclosures already made and future detriments said to arise from them.
The Court of Appeal in Sullivan has closed off the human-rights route. Articles 10 and 14, read together, do not require the legislative gap to be filled. Reform, if it is to come, must therefore come from Parliament.
Two legislative routes
Widen section 43J
Parliament could amend section 43J to render void any contractual provision that, in respect of protected disclosures already made, releases or precludes future detriment claims founded on those disclosures. That would be the more surgical fix.
Extend the sectoral model
Parliament could extend the section 49B model beyond the NHS. Section 49C Employment Rights Act 1996 already contains an unimplemented enabling power for children’s social care recruitment. Regulations under that power could provide a pre-existing architecture for part of the regulated children’s sector.
Section 49C was inserted by section 32 of the Children and Social Work Act 2017. It empowers the Secretary of State to make regulations prohibiting a relevant employer from discriminating against an applicant for a children’s social care position because it appears that the applicant has made a protected disclosure. No equivalent regulations have been made under section 49C.
The certainty point engaged in Sabby Mionis v Democratic Press SA supplies a separate line of analysis about broadly worded contractual restrictions on speech. It does not displace the structural conclusion. The contracting-out architecture of Part IVA does not, on its current terms, reach the Darlington fact pattern, and the Court of Appeal has confirmed that the Convention does not require it to.
The reform proposition is therefore not one of judicial creativity. It is one of legislative implementation.
Practitioner points
For practitioners
- A widely worded Acas-conciliated COT3 may bar a later section 47B detriment claim if the claim depends on relitigating pre-settlement protected disclosures.
- Ajaz is the closest authority on that pattern.
- Bathgate, Arvunescu, Howard and BCCI v Ali supply the construction architecture.
- Hinton and Lunt remain important specificity and statutory-policy counterweights.
- Drafting should be treated as decisive: generic or casual settlement wording is not a safe substitute for deliberate construction.
For policy observers
- The result in Darlington is orthodox doctrine, not an outlier.
- The critical issue is the absence of a Part IVA analogue to the Equality Act “particular complaint” brake.
- The section 203 carve-out for Acas-conciliated settlements is part of the structural explanation.
- Regulated safeguarding sectors outside the NHS remain exposed to the gap.
- The dormant section 49C power provides one possible route for legislative action.
For the practitioner, the working position is clear. A widely worded Acas-conciliated COT3 will, on the consolidated COT3 authorities, bar a later section 47B Employment Rights Act 1996 detriment claim that depends on relitigating the protected status of pre-settlement disclosures, even where the later detriment post-dates the settlement.
For the doctrinal observer, the result in Darlington is an orthodox application of the COT3 line. The critical purchase of commentary on the case is structural, not corrective. The orthodox doctrine produces a public-interest tension with Part IVA that the courts cannot now resolve.
For the policy observer, the structural gap is most visible in regulated safeguarding sectors that lack a section 49B-style sectoral shield. Early years is the present case in point, and it is the present subject of the Education Committee’s expanded inquiry.
Whether Darlington becomes the case that prompts implementation of a dormant statutory power, or remains a quiet illustration of an unaddressed gap, will turn on legislative will rather than judicial creativity.