In Vernon v London Borough of Hammersmith and Fulham, the
claimant alleged that the employer had directly discriminated
against her on the grounds of her race by failing to promote
her. She also claimed that an e-mail sent from the
employer's solicitor to ACAS, which was passed on to her,
amounted to victimisation of her for bringing her claim, in the
In respect of the direct discrimination claim, the employer
argued that the claimant had not been promoted as she was not the
best person for the job and, in particular, that that her
report-writing skills were poor. The tribunal rejected the
claimant's direct race discrimination claim. However, it upheld
her victimisation claim in respect of the solicitor's e-mail to
The solicitor had e-mailed ACAS to say that the employer was not
prepared to make an offer for settlement as it was confident in its
case. The solicitor said that basic grammatical and spelling errors
made by the claimant in her ET1 claim form were indicative of the
fact that she was not capable of promotion. The ACAS officer
forwarded the solicitor's e-mail to the claimant, with the
The Tribunal found that the comments went further than the
employer's pleaded defence that she was not the best person for
the job and were inaccurate. They were designed to deter the
claimant from continuing with her discrimination claim and placed
improper pressure on her. The tribunal found that the comments
amounted to "unambiguous impropriety" and were not
"honest and reasonable conduct of proceedings", therefore
they were not protected by "without prejudice" privilege.
The claimant was able to refer to the comments made by the
solicitor in order to claim victimisation.
Comment: Employers and their
representatives need to take a careful approach to settlement
negotiations, whether through ACAS or otherwise. As this case
shows, there can be a fine line between "honest and proper
conduct of the case" and overstepping the mark, which may
remove "without prejudice" privilege. We are seeing an
increase in claimants alleging that improper pressure has been
applied on them to settle their case and a careful approach should
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