Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

The facts in Konczak v BAE Systems (Operations) Ltd

Ms Konczak (“the Claimant”) commenced employment with BAE Systems (Operations Ltd) (“the Respondent”) as a secretary in November 1998. Her employment with the Respondent terminated on 23 July 2007. The Claimant subsequently submitted claims in the Employment Tribunal relating to sex discrimination, disability discrimination and unfair dismissal.

The Employment Tribunal commenced on 14 July 2008 and the Claimant succeeded in part (she succeeded in her sex discrimination claim but not in her disability discrimination or unfair dismissal claims). The matter therefore proceeded to a remedy hearing. During the period between the “liability hearing” and “remedy hearing” the parties engaged in correspondence to attempt to settle the claim. This correspondence was on a without prejudice basis. The Respondent made an offer of £75,000 in July 2008 which the Claimant rejected. However, although the correspondence was on a without prejudice basis the Claimant included in the trial bundle for the remedy hearing the notes of a meeting with Dr Jarman (the Respondent’s medical expert) referring to the offer of £75,000. The Employment Tribunal therefore held at the remedy hearing in April 2011that the Claimant had waived the protection of without prejudice and judged that the Claimant had failed to mitigate her loss by accepting a reasonable settlement offer, thereby breaking the chain of causation.

The Claimant appealed the Employment Tribunal’s decision on 2 points, namely:

  1. That the Employment Tribunal had erred in holding that she had waived her without prejudice protection; and
  2. That the Employment Tribunal had erred in holding that she had unreasonably refused an offer of settlement, thereby breaking the chain of causation in July 2008

The law relating to without prejudice communications and remedy

If parties are attempting to genuinely settle an existing dispute then the without prejudice rule will generally protect any correspondence relating to that attempt to settle from being put before the Employment Tribunal as evidence. As stated above, this is generally the case unless both parties jointly waive their right to have the correspondence withheld. The important word here is “jointly”. One party cannot waive their right and submit without prejudice correspondence as evidence – both parties must waive their rights. There are other exceptions (for example, as evidence in cases which involve fraud or misrepresentation, among others).

On the issue of the breaking of the chain of causation, the bar set to break the chain of causation is set out in McKew v Holland [1969] 3 AER 1621. The Claimant’s conduct must be so unreasonable in refusing the offer that it was unforeseeable to the Respondent that they would undertake such an action.

The Employment Appeal Tribunal’s decision in Konczak v BAE Systems (Operations) Ltd

The Employment Appeal Tribunal dismissed the Claimant’s appeal on the first ground (that she had waived her without prejudice protection). It was held that the Claimant had deliberately included the note that referred to the £75,000 offer as she wished to plead a point relating to another issue. There was therefore no mistake on the Claimant’s part and she had waived her right to without prejudice protection. On the second point of appeal (that of the breaking of causation) the Claimant succeeded. The Employment Appeal Tribunal found that the Employment Tribunal had failed to give reasons for its finding that the Claimant had acted in an unforeseeable manner and that, further, the refusal of the offer of £75,000 was not unreasonable considering that the Claimant’s Schedule of Loss claimed over £400,000 in damages and a settlement offer of £200,000 had subsequently been made by the Respondent. The matter was therefore remitted to a fresh Employment Tribunal to determine the value of the Claimant’s remedy.

Our specialist employment lawyers’ thoughts on Konczak v BAE Systems (Operations) Ltd

This is clearly an unfortunate circumstance in which a party has made a simple error that has resulted in adverse legal consequences. Although the Claimant succeeded in her appeal the process to gain the remedy for sexual discrimination was delayed by a further year.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.76 Average

176 Reviews

Mohamed A

Super helpful and efficient, trustworthy service

Posted 1 day ago

Anonymous

efficient, responsive and effective

Posted 2 days ago

Andrew B

Very good service

Posted 2 days ago

Anonymous

Excellent service, compassionate and a good outcome

Posted 3 days ago

Anonymous

I had an employment issue which required legal advice. Chris was very supportive and knowledgeable, resulting in an optimum resolution in my favour. Would definitely recommend.

Posted 1 week ago

David M

Very professional and first-rate advice. I would use again. With thanks,

Posted 1 week ago

Anonymous

Got the job done swiftly without going too much in to detail.

Posted 1 week ago

Derek W

Redmans dealt with my case very efficiently and I was happy with the outcome.

Posted 1 week ago

Anonymous

Timely professional advice!

Posted 1 week ago

Anonymous

Very good service

Posted 2 weeks ago

Anonymous

I was in contact with Chris and then worked with Caroline on an employment matter. I was very pleased with the service and professionalism throughout, and came away with satisfied with the outcome. Would happily recommend.

Posted 2 weeks ago

Nikki

Received advice re employment law. Chris was very helpful and advised accordingly. Would happily recommend them and if ever I need help again, will not think twice before using them.

Posted 3 weeks ago

Samantha K

Absolutely brilliant thank you. Caroline Lewis is a legend

Posted 2 months ago

Anonymous

The legal advice was clear and helpful.

Posted 2 months ago

Davinder P

Good Service

Posted 2 months ago

Adrian V

I was using Redmans services for a Settlement Agreement. Very quick and professional service. The outcome was favourable and I was very pleased with the amendments and results. Pretty glad to recommend them for any type of legal advice.

Posted 2 months ago

Anonymous

Very responsive, efficient, clear and supportive. Thank you! Highly recommend.

Posted 2 months ago

Tiago S

Chris was always prompt to help me with legal matters that are beyond my comprehension and very helpful leasing with my former employer. I would recommend Redmans Solicitors to everyone who needs help.

Posted 2 months ago

Anonymous

Fast and professional advice tailored to what was needed. Thanks for your help Chris Hadrill and team.

Posted 2 months ago

Peter S

Really pleased with the outcome and the advice I had from Chris and Sacha.

Posted 2 months ago

Harika A

Redmans solicitor's helped me with my settlement agreement, Chris has been very helpful throughout the process.He was very prompt in his responses and made my settlement look simple.Special thanks to Caroline for her efficient communication, thorough explaination of contract terminology and negotiations.I highly reccommend Redmans solicitors for anyone seeking employment related legal help.

Posted 2 months ago