Faithorn Farrell Timms LLP v Bailey
A secretary at a firm of surveyors had been employed for six years. She had worked on a part-time basis, but towards the end of her employment the firm said that part-time working was no longer an option. Discussions about a settlement agreement followed, with letters being marked ‘without prejudice’ referring to the pre-termination discussions that had taken place. Provided that a genuine attempt is being made to settle a dispute, details of such negotiations are normally inadmissible in courts and tribunals.
The secretary then raised a grievance alleging an underlying strategy to bully her out of her job to avoid a financial settlement. In the grievance, she referred to the contents of the ‘without prejudice’ letters alleging that the correspondence contained more evidence of threatening and bullying behaviour.
When she resigned and claimed constructive unfair dismissal and sex discrimination, were those documents and the fact that discussions had taken place admissible in evidence? The employer argued that they could not be relied upon as they were ‘without prejudice’.
The Employment Appeal Tribunal (EAT) considered the law which prevents protected conversations from being referred to in employment tribunal proceedings for unfair dismissal. The EAT held that the rules do not just prevent the parties from revealing the content of protected conversations, but also prevents disclosure of the fact that the discussions have taken place at all.
Internal communications even referring to settlement discussions will generally be inadmissible in any claim of unfair dismissal.
Interestingly unlike the normal ‘without prejudice’ rules the EAT also held that the protection always applies and cannot be waived, even with the agreement of the parties.
The discussions could not therefore be disclosed. However, disclosure can take place if there had been undue influence, harassment, bullying or intimidation. The Acas Code of Practice on settlement agreements gives examples of such improper behaviour and the case was remitted back to the tribunal to determine if the employer’s conduct was improper and if the discussions were admissible for that reason.
- Anything said or written during the pre-termination negotiations can generally not be used against the parties in subsequent tribunal proceedings.
- Pre-termination discussions are not straightforward, and the rules must be followed in order to benefit from protected conversation protection. The statutory protection will not apply where there is improper behaviour and employers should conduct negotiations carefully as their comments could ultimately be seen by an employment tribunal. The Acas Code of Practice on settlement agreements should be followed.