EAT Practice and Procedure: Admissibility of Evidence – Admissibility of evidence – common law ‘without prejudice’ privilege – section 111A Employment Rights Act 1996 (‘ERA’)
In proceedings before the ET, the Claimant had complained of constructive unfair dismissal and indirect sex discrimination arising, in part, from the Respondent’s conduct towards her during a period of discussions she had initiated for the agreed termination of her employment. Her grievance and ET1 had referred to the parties’ discussions in this regard on an open basis. In responding to the grievance and in its ET3, the Respondent had not objected but had itself also referred to the material in question. Subsequently, in preparing for the Full Merits Hearing of the Claimant’s claims, the Respondent objected to her reliance on what it said was privileged material, alternatively material rendered inadmissible by virtue of section 111A ERA. On the basis of written submissions, the ET had ruled that the material in question was generally admissible, subject to redaction of specific references to any offer. It had not, however, gone on to deal with the Claimant’s contentions that (i) the Respondent could not rely on without prejudice privilege or section 111A given its unambiguous impropriety/improper behaviour, and (ii) in any event, the parties had waived privilege. On the Respondent’s appeal and the Claimant’s cross-appeal.
Held: Allowing both the appeal and the cross-appeal in part:
(1) In respect of without prejudice privilege.
Rejecting the Respondent’s contention that the ET had erred in its approach to the principle of admissibility of without prejudice negotiations (applicable to the parties’ communications post-dating 7 January 2015, at least so far as the Claimant’s claim of discrimination was concerned); it had correctly applied the relevant principles and reached a permissible case management decision and the appeal was rejected on this point.
If wrong on this, the ET had failed to deal with the points raised by the Claimant as to whether the Respondent was genuinely negotiating in an effort to resolve the dispute and/or whether there was unambiguous impropriety and the cross-appeal would therefore have succeeded on this point.
In any event, the cross-appeal would have succeeded on the other question raised by the Claimant (also not addressed by the ET), that was whether the Respondent had waived without prejudice privilege. That issue was to be resolved in the Claimant’s favour: the Respondent had implicitly waived privilege by relying on the material in issue in its ET3 (although not merely by permitting it to be referenced in the grievance); following Brunel University v Vaseghi [2007] IRLR 592 CA.
(2) On the application of section 111A ERA.
On this question, the ET had wrongly elided the approach to section 111A with that of without prejudice privilege. Section 111A had to be read on its own terms, which did not import the case law underpinning common law without prejudice privilege. The appeal would be allowed on this point.
The cross-appeal would also be allowed in part on the question of the application of section 111A; specifically as to whether there was improper behaviour. Remission of this matter to the ET would also enable it to consider the broader question as to whether section 111A was properly engaged in respect of the communications in issue in this case.
The cross-appeal was, however, dismissed so far as ‘waiver’ of section 111A confidentiality was concerned: section 111A, construed on its own terms, allowed for no possibility of waiver.
Eady QC HHJ
[2016] UKEAT 0025 – 16 – 2806
Bailii
England and Wales
Employment
Updated: 18 January 2022; Ref: scu.566248
