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 Claimant.
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 ACAS.
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 solicitor's permission.
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 be taken.
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