UK: Lifting The Veil - Changes To The "Without Prejudice" Doctrine

The recent case of Brunel University & Anor v Vaseghi & Anor is another reminder of the caution employers should adopt when conducting "without prejudice" discussion

As with their employees, particularly in the context of discrimination disputes.

The general rule is that negotiations genuinely aimed at settlement will be privileged and cannot be brought to the Court’s attention in subsequent litigation. However, the Employment Appeal Tribunal ("EAT") has reiterated in this recent case that the necessity in discrimination cases to get to the truth of what happened can outweigh the public interest in promoting settlement of claims.

In 2003, two employees of Brunel University brought complaints of racial discrimination. In each case, there were settlement discussions between the parties, through their legal representatives, prior to the Tribunal hearing. After both employees lost their claims, the Vice Chancellor of the University alleged in the University’s quarterly newsletter that the claims had been accompanied by "unwarranted demands for money". Both employees subsequently raised separate grievances about the Chancellor’s comments, arguing that the University had initiated the discussions over money and thus the comments amounted to victimisation. A grievance panel heard evidence about the settlement discussions between the parties and went on to conclude that both grievances should be rejected.

Both employees subsequently issued further complaints in the Employment Tribunal for victimisation. They sought to rely on evidence from the solicitor who had been involved in the settlement discussions and the content of the grievance panel’s report, which included numerous references to the discussions. The University objected to the employees being able to rely on this evidence on the basis that the discussions were "without prejudice". The Employment Tribunal found that the solicitor’s oral evidence was covered by the "without prejudice" rule but that the grievance panel’s report should be admitted as evidence, since the University had waived privilege by not objecting to the use of the discussions at the grievance hearing. The Tribunal also decided that even if there had not been a waiver, the report should still be admitted, as not to do so would severely prejudice the employees’ claims.

The University appealed against the Tribunal’s decision. The EAT rejected the appeal on the basis that the University had placed the issue of the settlement discussions in the public arena, had not hidden behind the cloak of privilege before the grievance panel and that it would therefore be an abuse of privilege not to allow the employees to refer to the original discussions in support of their victimisation claims.

If the need to handle discrimination cases with the utmost caution was ever in doubt, this case is also a useful reminder of the need to tread very carefully when conducting "without prejudice" meetings.

This case follows a number of earlier cases which, as a reminder, provided the following guidance:

• There must be a pre-existing dispute between the parties and discussions must constitute a genuine attempt to resolve that dispute. Simply to say that discussions are "without prejudice" where there is no genuine dispute between the parties will not attract the "without prejudice" rule;
• The employee must genuinely consent to discussions being held on a "without prejudice" basis;
• Employers should be aware that anything said during "without prejudice" discussions could be relied upon to form the basis of further claims. In particular, employers should avoid making remarks of a discriminatory nature.

The national minimum wage was increased from £5.05 to £5.35 with effect from 1 October 2006. The youth rate, which applies to 18 to 21 year olds, increased to £4.45.

Various provisions of the Work and Families Act 2006 came into force on 1 October 2006. They will affect those women whose expected week of childbirth falls on or after 1 April 2007 or who have a child placed for adoption on or after that date. The main provisions are as follows:

1. Statutory maternity and adoption pay will be payable for 39 weeks (an increase from 26 weeks);
2. An entitlement to additional maternity leave, in addition to six months' ordinary maternity leave, will exist regardless of the length of service of the employee. Previously, an employee needed 26 weeks’ service at the start of the 14^th week before their expected week of childbirth in order to qualify for a further six months’ additional maternity leave. Now all pregnant employees qualify for twelve months maternity leave, regardless of their length of service;
3. If employees wish to return early from additional maternity leave, eight weeks' notice will be required instead of 28 days';
4. Employers and employees will benefit from "Keeping In Touch" days. If both parties agree, an employee will be able to return to work for up to ten days work during her statutory maternity leave period without bringing her maternity leave to an end or losing her entitlement to statutory maternity pay. An employee who undertakes, considers undertaking, or refuses to undertake such work under the "Keeping In Touch" provisions, will be protected from detriment or dismissal on those grounds by the Employment Rights Act 1996;
5. Employers will be entitled to make "reasonable contact" with employees while they are on maternity leave;
6. The small employers’ exemption has been removed. Previously, employers with five or less employees were exempted from a finding of automatic unfair dismissal where they did not allow an employee returning from additional maternity leave or additional adoption leave to return to the same or a similar job.