Commentary - 'Without prejudice' may not always mean off the record

In the context of 'without prejudice' communications, the general rule is that parties to a dispute ...

In the context of 'without prejudice' communications, the general rule is that parties to a dispute can have a privileged discussion to facilitate a settlement without the fear that any admissions, cessions or proposals will be used against them if the dispute reaches a courtroom as they are inadmissible in evidence. This does not usually cause particular difficulties for personal injury practitioners. However, recent developments in the Employment Tribunal may give cause for concern.

There was a move towards admitting without prejudice communications in BNP Paribas v Mezzotero (2006), when the Employment Appeal Tribunal held that the details of a without-prejudice meeting could be admitted in evidence in a sex-discrimination claim. The justification was that, at the time the discussions took place, there was no live dispute between the parties, and the meeting was not a genuine attempt to compromise a dispute. The discussion that took place between the parties was in fact evidence of the sex discrimination, and it would be an abuse of law to exclude it.

More recently, the Court of Appeal has held that details of a without prejudice meeting were admissible in claims for victimisation (Brunel University and Schwartz v Webster and Vaseghi 2007). Following unsuccessful claims for race discrimination, the claimants alleged that they had been victimised.

The claimants first raised a grievance in accordance with ET procedure, which alleged that they had been publicly accused of making unwarranted demands for money when in fact it was the University that had initiated settlement discussions.

In the subsequent victimisation claim, the defendant's employer sought to have evidence related to the without-prejudice discussions excluded. The details of the discussions had been investigated during the grievance and mentioned in the pleaded cases of both parties. The Court of Appeal decided that this was sufficient for there to be a bilateral waiver of privilege and allowed the evidence to be admitted.

The courts acknowledge in both cases that it may be very difficult for a claimant to prove victimisation or discrimination, if they are not entitled to rely on without-prejudice communications that may provide evidence of the alleged treatment.

For the most part, without-prejudice communications to resolve other claims should be unaffected, as long as the parties are genuinely trying to resolve a live dispute between them. However, there is a potential for difficulties to arise in occupational claims, such as stress at work.

An employee could be entitled to admit in evidence details of any without prejudice discussions with their employer to terminate their employment, if they arise before there is a live dispute between the parties. This may be evidence of pressure and stress being placed upon them that has caused or contributed to their condition. So employers must be aware of the risk that any genuine attempt to resolve the employment problem amicably could be used against them in a subsequent claim.

Without-prejudice discussions need to be undertaken carefully and with the resolution of a particular dispute in mind.

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