'Without Prejudice' - When Can Settlement Negotiations Be Referred To In Tribunal?

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In "Woodward v Santander" the EAT considered the rules that apply to 'without prejudice' communications. The general rule is that any communication made 'without prejudice', that is to say in an effort to settle a claim, cannot be referred to in a court or tribunal.
United Kingdom Employment and HR

In Woodward v Santander the EAT considered the rules that apply to 'without prejudice' communications.  The general rule is that any communication made 'without prejudice', that is to say in an effort to settle a claim, cannot be referred to in a court or tribunal.

In this case, the claimant had settled earlier claims against her ex-employer under the terms of a compromise agreement.  She now brought a fresh claim of victimisation due to an alleged failure to provide her with suitable references.  She wished to refer in her witness statement to 'without prejudice' discussions that took place prior to the settlement of her earlier claims, in which the employer had refused to provide her with a favourable reference as one of the settlement terms.  She argued that the general rule could be waived as in the case of Mezzoterro v BNP Paribas on the basis of 'unambiguous impropriety' on the part of the employer.

In Mezzoterro, the claimant returning from maternity leave had sought a meeting to raise a grievance.  The employer's representative asked if the meeting could be 'without prejudice' but then went on to suggest that she should leave her employment.

The tribunal held that this was improper conduct because there was no existing dispute as to the termination of her contract and the employer's remarks could not be construed as a genuine attempt at compromise.  It was just a cynical abuse of the 'without prejudice' rule in order to hide discriminatory behaviour.  It could therefore be referred to in tribunal and, indeed, form the basis of her claim of sex discrimination.

That was not the case here and there was no reason to widen the circumstances in which the rule could be overridden.

Point to Note –

  • This case confirms that it is only where there is a clear abuse that anything said or done in 'without prejudice' negotiations can be referred to in tribunal. It also confirms that there is no special rule applicable to discrimination claims.

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