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In this article Redmans employment law solicitor Chris Hadrill examines the circumstances in which without prejudice settlement negotiations can be admissible as evidence in Employment Tribunal proceedings.

The ‘without prejudice’ rule generally prevents oral or written statements made in a genuine attempt to settle an existing dispute from being put before a court or tribunal as evidence of an admission adverse to the interests of the party that made the statement. It is a well-established (and useful) rule that operates in practice to allow parties to be full and frank in correspondence about factual and/or legal matters, with the principal aim of encouraging informed settlement of disputes. However, there are some circumstances in which there is an exception to this rule and communications which would otherwise be protected under without prejudice privilege can be rendered admissible in legal proceedings. These exceptions apply in the following circumstances:

  1. Where there is not yet a dispute between the parties
  2. Where all parties agree to waive privilege
  3. Where there is ‘unambiguous impropriety’ by one or more parties

We’ll address these exceptions in their relevant order below (please note that these examples are not exhaustive)

Lack of a dispute

The without prejudice rule will not apply where the parties are not yet in dispute, or where the parties are in dispute but the correspondence or discussions merely set out the parties’ respective positions in that dispute or criticise the other party’s position.

Waiver of privilege

It is possible for parties to waive privilege in relation to without prejudice correspondence or negotiations, but only when both (or all) parties to such correspondence expressly and unequivocally waive privilege. Examples of such waivers include the cases of:

  • Brunel University and another v Vaseghi and another [2007] EWCA Civ 482 – the Court of Appeal held that the parties had waived privilege with regards to some without prejudice communications which were considered as part of an employee’s grievance as the employer had attached a copy of the grievance report referring to such communications to its ET3
  • Somatra Ltd v Sinclair Roche & Temperley [2000] EWCA Civ 229 – the Court of Appeal held that parties can jointly agree to waive privilege but, where the parties do so, any communication waived will be be admissible in its entirety, including any admissions made in it

Unambiguous impropriety

The without prejudice rule must not be used as a cloak for perjury, blackmail or other ‘unambiguous impropriety’ (Unilever v Procter & Gamble Company [2000] 1 WLR 2436). In the leading case of BNP Paribas v Mezzotero [2004] IRLR 508 it was suggested that unambiguous evidence of discrimination in without prejudice communications may also lead such communications to having its protected communications label removed, and in Brunel University & another v Vaseghi & Webster [2007] 482 the Court of Appeal suggested that the need to establish the truth in discrimination claims could outweigh the protection otherwise granted by without prejudice communications. This was, at the time, regarded as both a decision which potentially aided the interests of justice (in allowing unambiguous evidence of discrimination which would otherwise be inadmissible from being put before the court) and also one which could potentially cause headaches for parties attempting to be full and frank in their attempts to settle disputes, as a clear consequence of this ruling could be that parties ‘combed’ through without prejudice correspondence in order to establish an inference of discrimination and therefore render such correspondence admissible.

In Woodward v Santander UK plc UKEAT/0250/09 the Employment Appeal Tribunal partially closed the door on the new ‘exception’ of discrimination, holding that one party merely drawing attention to without prejudice communications from which an inference of discrimination could be drawn was not enough to remove the protection that such communication would otherwise enjoy; in order to remove without prejudice protection from a communication the evidence of discrimination must be unambiguous in nature. In practice, it’s unlikely that there are going to be many examples of where there is unambiguous evidence of discrimination within a communication which would otherwise enjoy without prejudice protection.

 

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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    Nigel A

    Chris Hadrill is hugely impressive - the right blend of assured calm and savvy professionalism. I've already recommended him to friends and family.

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    I was hugely impressed with the ease of being able to work with Redmans Solicitors and their professional approach. Mel was really clear around the process, and costings required and I felt comfortable throughout. I would certainly recommend.

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    I can highly recommend Redmans. The service was professional and prompt and I would not hesitate to use them again. Thanks

    Posted 6 days ago

    Anonymous

    Overall I am satisfied with the performance from Redmans. The reason I have given 4 stars is that I had quite a lot difficulty in contacting the representative which was initially nominated for me. However, when I contacted Chris instead, he was excellent over the phone and secured a great outcome in short order. I would recommend Redmans Solicitors.

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    Anonymous

    Chris and Redmans were a great help. Effective and efficient, quick response from my first enquiry and then straightforward and attentive throughout with ultimately a positive outcome. I will use them again and recommend them.

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    Marie P

    Great service, quick responses, good advice and all in a no nonsense, no jargon manner. Would definitely recommend.

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    Rana was amazingly thorough and professional!

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    I am extremely happy with the legal advice I was provided with. My case was resolved to the best of my expectations. Thank you very much for your professional help.

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    Chris and his team were excellent. They provided sound advice and consultation that resulted in more cash than was offered. Would definitely recommend.

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    Sanjay B

    I would like to take this opportunity to thank Mel Chin, for all her support during my settlement process. Where she provided a professional service and was understanding. I would confidently recommend Redmans Solicitors to my friends and family. Thank you and wishing you all a Merry Christmas.

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    I don’t normally write reviews, but thought it was time on this occasion. Just wanted to say that I highly recommend Redmans - especially Rana Tandon, who helped me navigate around my employment contract. Rana was meticulous and thorough and all over my needs. Would I use Redmans again ? ..absolutely

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    Very thorough and professional service. I was very nervous about my employment case, as I had never dealt with anything like it before. However, the solicitors who handled my case made sure I understood everything. I was never kept in the dark and Redmans kept me constantly informed about what was going on with my case. I would definitely recommend Redmans Solicitors

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    Richard S

    Chris and Sacha were great throughout the entire process. Chris was very helpful once the initial discussions with my company began and before we agreed there was a case. Sacha was very responsive, patient and helpful throughout ensuring I felt I had the right information to make the best decision on next steps. A close friend and wife have both used Redmans in the past few years for unfair dismissals and the service continues to be first-class and I would strongly recommend them again. They definitely help reduce the anxiety that comes with uncertainty around new processes and situations. Thank you!

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    Anonymous

    Redmans assisted with a settlement agreement, providing a timely and professional service. Caroline articulates perfectly and was fantastic.

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