The parties had been involved in long standing disputes about the procedures in the respondents complaints of race discrimination. The claims had been dismissed, but the Vice-Chancellor then wrote publicly of unfounded unwarranted and excessive claims of race discrimination. The claimants asserted that this amounted to victimisation for having pursued the claims, and they first lodged grievances, beginning also claims before the ET before the decisions on the grievances had been announced. The ET made decisions about admission into evidence of the without prejudice discussions, and the grievance reports. Both sides appealed.
Held: The appeal failed. Details of the negotiations had reached other senior members of the University. Did this amount to waiver on the University’s part? They had set up what was stated to be an independent pane hearing an adversarial matter. The University could claim both that the panel was independent and that it was part of the university’s senior management. The University had waived any without prejudice protection as had the claimants: ‘by referring to the ‘without prejudice’ discussions in their ET1s and witness statements, the employees made it plain that they intended, unless prevented, to waive their privilege. By pleading their responses as they did and by attaching the grievance panel’s reports to the ET3s, the University made it plain that it too intended to waive privilege. In our view, bilateral waiver had taken place at the time the ET3s were lodged with the Tribunal office.’
Longmore LJ, Smith LJ, Sir Paul Kennedy
 EWCA Civ 482,  IRLR 592
England and Wales
See Also – G Webster v Brunel University EAT 14-Dec-2004
EAT Race Discrimination
Novel point decided that the Employment Tribunal erred in concluding that, in a case where there was an issue as to whether the act complained of was by the Respondent (i.e. by . .
See Also – Vaseghi v Brunel University CA 21-Nov-2006
Appeal from – Brunel University and Another v Vaseghi and Webster EAT 16-Oct-2006
EAT Practice and Procedure – Disclosure
Allegations that Claimants had made unwarranted demands in original tribunal proceedings said to be victimisation.
Grievance procedure heard evidence relating . .
See Also – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
See Also – Vaseghi v Brunel University EAT 8-Dec-2004
EAT Race Discrimination / Trade Union Rights>br />The Employment Tribunal incorrectly excluded unconscious discrimination from its consideration, contrary to Nagarajan, and on the s146 claim wrongly concluded . .
Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Cited – Savings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
Cited – Chocoladefabriken Lindt and Sprungli AG and another v The Nestle Co Ltd 1978
Megarry V-C said that the mere failure to use the expression ‘without prejudice’ is not decisive of whether the letter is such. The question is whether the letters were written in an attempt to compromise actual or pending litigation and, if so, . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Fazil-Alizadeh v Nikbin CA 25-Feb-1993
There are powerful policy reasons for admitting in evidence as exceptions to the without prejudice rule only the very clearest of cases. Unless this highly beneficial rule is most scrupulously and jealously protected, it will all too readily become . .
These lists may be incomplete.
Updated: 23 April 2021; Ref: scu.252504