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This case concerns without prejudice communications and the ability to admit such communications as evidence in the Employment Tribunal.

The facts in Roberts v ALDI Stores Ltd

Mr Roberts (“the Claimant”) commenced employment with Aldi Stores Ltd (“the Respondent”) on 3 July 2006 as store manager at their Llandrindod store. His employment was terminated by the Respondent on 31 March 2010 and the Claimant submitted complaints for unfair dismissal, unpaid holiday pay, accrued but untaken holiday pay, failure to give written reasons for his dismissal, and complaints under the Working Time Regulations 1998. The Respondent conceded that the Claimant had been unfairly dismissed two days before the Employment Tribunal hearing and the hearing proceeded on a remedy only basis. The Employment Judge sitting on the case awarded the Claimant £10,051 for his unfair dismissal claim but failed to consider his other complaints, including his claim for accrued but untaken holiday pay, failure to provide written reasons, and his claims under the Working Time Regulations. Further, the Claimant was aggrieved that the Employment Judge had taken into account without prejudice discussions which had taken place prior to the Employment Tribunal hearing and had only extended his compensatory award to 1 July 2010 because of the fact that he had taken such evidence into account.

The law relating to without prejudice communications in the Employment Tribunal

The without prejudice rule generally prevents written or oral statements made in a genuine attempt to settle a claim (whether pre-action or during proceedings) from being as used in evidence in proceedings against the party that made any admission. This is generally a blanket rule and is based upon either an implied contractual term or on a public policy basis. Although a statement which is made on a without prejudice basis is not generally admissible in the Employment Tribunal, such a communication can be admitted as evidence if both parties consent to such. The reason for having such a rule is to encourage parties to settle their claim.

The Employment Appeal Tribunal’s decision in Roberts v ALDI Stores Ltd

The Employment Appeal Tribunal upheld the Claimant’s appeal on the admissibility of the without prejudice meeting and further upheld his appeal that the Employment Judge had failed to deal with certain aspects of his claim, such as the Working Time Regulations claim, the failure to provide written reasons for dismissal, and the failure to pay accrued but untaken holiday pay. However, the Claimant conceded that his claim for notice pay was covered by the basic award that had been awarded by the Employment Judge in the remedy hearing.

Our specialist employment lawyers’ thoughts on Roberts v ALDI Stores Ltd

If you engage with another party on a without prejudice basis then make sure that the meeting, letter or telephone discussion is stated to be on a without prejudice basis (and that such statement is recorded). Failure to do so (this is a fairly obvious point) could (and almost did in this case) severely prejudice your case, whether you’re submitting an employment law complaint or defending one.

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

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