In 2017, the Claimant brought claims of detriments contrary to section 47B of the ERA 1996. After agreeing to settle her claims under a COT3 agreement, she withdrew her claims, which an EJ dismissed. The Claimant later presented further claims in May and September 2021. These were also claims of detriments contrary to section 47B ERA, all said to have taken place after the COT3, and one of which was an alleged breach of the terms of the COT3. The Claimant alleged in her further claims that the new detriments to which she was subjected were done on the ground that she had made the same protected disclosures as in her first claim. The Respondent defended the claims and applied for them to be struck out. An EJ agreed with the Respondent and struck out the claims, by reference to rule 52 of the ET Rules, and in the alternative, as an abuse of process. The Claimant appealed.

The EAT dismissed the appeal. While the EJ erred in her analysis of the effect of rule 52, she had carefully considered, in the circumstances, the issue of whether the 2021 Claims were an abuse of process. She did not err in that analysis or in relation to the application of section 43J ERA. She did not fail to consider arguments about whether the Claimant was no longer bound by the terms of the COT3. In the circumstances, the EJ’s error on the first ground was not such that her decision to strike out the 2021 Claims was unsafe and should be set aside.