The without prejudice rule and the statutory settlement of employment claims. Framlington Group Ltd v Barnetson; BNP Paribas v Mezzotero.
Without prejudice; the foundational authority. Letters or conversations written or said to be 'without prejudice' cannot be taken into consideration in deciding whether there is good cause for depriving a successful litigant of costs. Per Lord Esher MR: 'nothing which is written or said without prejudice should be looked at without the consent of both parties, otherwise the whole object of the limitation would be destroyed.' The origin of the rule that the privilege is joint and cannot be waived unilaterally. Lindley LJ glossed the phrase as meaning 'without prejudice to the position of the writer of the letter if the terms he proposes are not accepted'.
Settlement; abandonment of proceedings. At 35G-H: 'There is nothing to prevent a party from abandoning the proceedings: what cannot be done is to compel him to do so because of an agreement he has made, if he changes his mind before he does so.' Cited in Times Newspapers Ltd v Fitt and relied on by the claimant in Edward v North London NHS Foundation Trust, where HHJ Auerbach declined to treat the passage as binding (it may be obiter) but reached the same result on the words of rule 64/62.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Costs; settlement offers; the Calderbank principle (automatic costs for rejecting a reasonable offer) does not apply in employment tribunals, but rejection of a 'without prejudice save as to costs' offer is evidence of unreasonable conduct that a tribunal may consider when exercising its costs discretion.
Evidence; 'without prejudice'; existence of a dispute; grievance. The EAT (Cox J) held that an employee's formal grievance did not bring a later meeting within the without prejudice rule. Called to a meeting on her return from maternity leave, opened as 'without prejudice' and said to be independent of the grievance, the claimant was told her job was no longer viable and offered a settlement dressed as redundancy. The meeting was not a genuine attempt to settle the grievance, and no dispute about termination existed, so she could rely on it in her sex discrimination claim [IDS 15.88]. Barnetson v Framlington Group Ltd, which finds a dispute once the parties contemplate or could reasonably contemplate litigation, is reconciled on the footing that the rule protects only communications aimed at settling the particular dispute that has been raised [IDS 15.90]. The exception for perjury, blackmail or other unambiguous impropriety derives from Unilever plc v Procter & Gamble Co, not from this case.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Without prejudice; waiver must be consensual; compensation. The claimant, unfairly dismissed, sought re-engagement. In refusing it the tribunal took account of a job offer made in without prejudice negotiations, holding that the employer, having made the offer, could waive the protection. Elias P called that 'wholly misconceived': privilege of other kinds can usually be waived by the party entitled to it, but without prejudice protection cannot be waived by one side alone, as Lord Esher MR said in Walker v Wilsher, and 'Waiver must be consensual' (the Brunel University case). Whether the claimant had himself waived it turned on disputed facts, so that question was remitted to a fresh tribunal. The EAT also allowed the appeal on compensation: the tribunal could not cap loss at the date the claimant found new work, since he lost that job at the end of its probationary period.
Without prejudice; interpretation exception. Facts communicated between the parties in without prejudice negotiations which would, but for the rule, be admissible as part of the factual matrix are admissible in evidence to construe the settlement agreement resulting from those negotiations. The same principles of contractual interpretation apply whether the negotiations were without prejudice or open, and the exception sits naturally alongside the established rectification exception.
Settlement; s.111A ERA 1996; without prejudice privilege. Section 111A must be read on its own terms, not through the lens of common law without prejudice privilege [46], [61]. It renders inadmissible the fact of pre-termination negotiations, not only their content [40], [61]. It is not limited to evidence from those directly involved: reports of the discussions to a board, higher management or HR are covered [43]. It applies only to the unfair dismissal claim: the same evidence may be admitted for a discrimination claim [38]. Section 111A inadmissibility cannot be waived, even by agreement, given the absence of any such exception and s.203 ERA 1996 [45], [65]. Improper behaviour under s.111A(4) is potentially broader than unambiguous impropriety [48]. At common law the employer had waived privilege by relying on the material in its ET3 [55]. HHJ Eady QC allowed the appeal on s.111A; the s.111A(4) question required remission [64], [66].
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Without prejudice; existing dispute; unambiguous impropriety. A pre-claim meeting at which the employer proposed a settled exit was protected by the without prejudice rule: a grievance alleging pregnancy/maternity discrimination meant the parties were already in dispute about the matters later litigated, even though no proceedings had begun. Proposing consensual termination falls far short of the unambiguous impropriety — of the order of perjury or blackmail — required to disapply the privilege; BNP Paribas v Mezzotero turned on its own facts.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.