The claimant returned from maternity leave and three months later informed her manager that she was pregnant again.  Following on from that the claimant submitted a grievance alleging discrimination on the grounds of her maternity as well as bullying and harassment. An outside employment law adviser met with the claimant and her husband.  The respondent had stated they would pay for a legal adviser to attend the grievance on behalf of the claimant but this was refused.

At the grievance meeting the external adviser asked for a without prejudice conversation and he assumed that she knew what that meant considering that she had a law degree.  The external adviser stated that the respondent was willing to make an offer of £80,000 to terminate the employment.  The claimant did not agree to this.  As a result, the respondent rejected the grievance and the claimant subsequently brought a claim to the Tribunal.   She further resigned from her employment and amended her claim to include constructive dismissal.

The issue arising here was that the claimant had included aspects of the conversation with the external adviser, including the offer, in her claim.   The respondent applied to have this removed on the basis that it was without prejudice.   The Tribunal, at first instance, found in favour of the respondent.  The Tribunal did not believe the claimant when she said she did not understand the phrase.  The Tribunal noted that without prejudice conversations were inadmissible even before the commencement of litigation but would only be allowed if it was shown that there was improper behaviour on the part of the respondent.  There was no finding of ‘improper behaviour’ but rather the Tribunal found that it was a genuine attempt to settle the dispute.  As a result, the claimant was also ordered to pay costs with the Tribunal citing that she had acted unreasonably as her contentions were ‘unfounded’.

The claimant appealed to the EAT.  The thrust of her argument was that the offer was not a genuine attempt as it was to bring her employment to an end when she had stated that she wished to remain with the respondent.  The EAT rejected the appeal.  On the issue of the offer relating to termination and the original dispute not; this was a red herring.   The grievance, meeting and the subsequent tribunal claim were all found to concern the same subject matter.  Additionally, it was found that the offer did relate to a dispute and therefore was allowed to be privileged.  This was on the basis of the fact that there had been discussions of ‘legal rights’ which would lead one to think that litigation was possible and bearing in mind the claimant’s legal background such statements could be seen as ‘signposts’ towards litigation.  As a result, the appeal was dismissed.  Furthermore, as there was no issue with the substance of the decision the appeal against the costs order was also unsuccessful.

Practical Lessons:

This case demonstrates the inadmissibility generally of without prejudice discussions.   There are some exceptions to that which were explored unsuccessfully in this case.  This included the issue of there being a dispute, any impropriety on the part of the respondent as well as attempting to divorce the offer to bring the employment to an end with the grievance which was submitted.  These arguments all failed and is demonstrable of the extent to which the Tribunal will protect without prejudice conversations considering their benefit in bringing cases to an end on the parties’ terms and without the need for the Tribunal to intervene.