Like most other things in employment law, the rule in "Without Prejudice" communications has not always been clear. A basic rule of thumb is that if you receive a "Without Prejudice" letter or have a meeting with your employer before the existence of a dispute, then such negotiations are not considered as coming under the "Without Prejudice" rule, and evidence will be able to used before an employment tribunal.
An example of the preliminary stages of a dispute is before a worker has made an official complaint under the grievance procedure or made an employment tribunal (ET) application ('ET1'),or before an employer has formally disciplined the worker.
Under these circumstances of not being in dispute, what was said in "Without Prejudice" meetings or "Without Prejudice" letters can later be used in evidence at the employment tribunal or in court.
Once there is a dispute, then evidence gained by parties to the dispute during "Without Prejudice" negotiations can not be revealed later on. This holds even if one of the parties has from evidence gained from the "Without Prejudice" information, been seen later on to have lied to the court. Judges have held that the "Without Prejudice" rule trumps the rule of telling the truth to a court.
The reason is one of public policy; that it is in the public interest that parties should be able to relax their guard in a dispute. It is argued that this helps bring about successful negotiations and in the reaching of "out of court settlements".
In this case that went to the Court of Appeal, Professor Vaseghi brought a race discrimination claim against Brunel University. Subsequently the University Vice Chancellor commented in a newsletter that a claim had been accompanied by "unwarranted demands for money". Professor Vaseghi objected in that this thinly veiled reference to him amounted to unlawful victimisation. He then opened a further employment tribunal claim in order to attempt to prove his assertion that money had not been relevant to him, or mentioned by him when he was contemplating his original employment tribunal claim for racial discrimination.
The University objected to the use of a solicitor's evidence of the negotiations, because it held that the "without prejudice" rule applied to the settlement negotiations, and thus the solicitor's evidence was inadmissible before the tribunal.
The tribunal agreed with Brunel University. The Employment Appeals Tribunal (EAT) following the case of BNP Paribas v Mezzotero, agreed with Professor Vaseghi, arguing that although the discussions had indeed been subject to the "without prejudice" rule, an exception should be made in a discrimination case where it might otherwise be impossible for a claimant to prove his assertions. The Court of Appeal agreed with the EAT.
In this case however, the fact that both parties referred to the 'without prejudice' communications in the ET1 and ET3 was another reason to waive privilege.
An additional factor in this case was that if an impartial enquiry examined what happened during a 'without prejudice' meeting, that would also amount to a waver of privilege.
The relevance to workers and their representatives is that they should not automatically take at face value an employer's argument that a meeting is "without prejudice"(there is of course no need to comment on this assertion to the employer at the time he makes this claim). Valuable evidence can be gained for a worker in such a situation, so it is important to have a trade union rep or colleague at such a meeting to support him, act as a witness and to take notes. If you don't have a trade union representative or colleague at your Grievance of Disciplinary meeting, try to make detailed notes of the meeting.