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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
