Mr M Liepa v Crystal Springs Consumer Division Ltd: 6000938/2024 Mr M Liepa v Crystal Springs Consumer Division Ltd: 6000938/2024
EMPLOYMENT TRIBUNALS
Case No 6000938/2024
Between
Mr M LiepaClaimantCrystal Springs Consumer Division LtdRespondent
Before
Employment Judge HallidayIn person for claimantMr Large (instructed by counsel) for respondentDate 25 July 2025
JUDGMENT
[1]References to the meeting held on 23 October 2024 and documents which refer to it and subsequent negotiations are privileged within the “without prejudice” rule.[2]References to the meeting held on 23 October 2024 and any documents which refer to it and subsequent negotiations are inadmissible in these proceedings within the meaning of section 111A Employment Rights Act 1996.
REASONS
[3]The claimant is bringing claims for unfair dismissal and disability discrimination. The background, issues for determination at the final hearing, and directions for preparation for that hearing (which remains listed for 21, 22, 23,24 and 25 July 2025) are set out in the Order of Employment Judge Dawson dated 11 October 2024 made at a Case Management Hearing on that date.[4]A further Preliminary Hearing was held on 5 December 2025 before Employment Judge Self to consider an application by the respondent to strike out the claim or alternatively to make a deposit order. The application was unsuccessful, but in reviewing the claim Employment Judge Self identified that there was reference in the claim form to a meeting that could in his view meet the criteria for pre-termination negotiation (protected conversation) pursuant to section 111A(1) Employment Rights Act 1996 (ERA). The respondent asserted that the evidence about that conversation and, in actual fact, the very fact that it took place would be inadmissible, so far as the unfair dismissal claim is concerned, pursuant to 111A (1) ERA. The claimant asserted that during the meeting that the respondent had acted improperly or had acted in a way connected to improper behaviour and it would not be just to render the conversation inadmissible. In addition, the claimant asserted that so far as the discrimination claims are concerned, the respondent should lose any privilege attached to the meeting that might be available as a without prejudice discussion, on account of “unambiguous impropriety.” The matter was therefore listed for a public preliminary hearing.[5]Paragraph 23 (preparation of a file bundle) to paragraph 35 (exchange of witness statements) of the Case Management Order were dismissed by Employment Judge Self to be retimetabled after determination of the matters before the Tribunal today.
The Issues
[6]As set out in the Order of Employment Judge Self dated 5 December 2025 the issues to be determined at this hearing are: 6.1. Was the meeting on 23 October 2023 covered by without prejudice privilege in that there was an existing dispute between the parties? 6.2. If the meeting was covered by without prejudice privilege did the respondent lose that protection because of any unambiguous impropriety? 6.3. The parties agree that the meeting fell within the definition of section 111A(2) ERA and amounted to a pre-termination negotiation (protected conversation). 6.4. Are the contents and the existence of that meeting inadmissible for the purposes of the unfair dismissal claim or would it be just to render it admissible by virtue of any improper behaviour on the part of the Respondent (s.111A (4) ERA). 6.5. Following determination of these issues, what redactions / amendments are required to be made to documents on the Tribunal file, if any.
The Hearing
[7]I heard evidence from the claimant and from Mr Laird, managing director of the respondent who had each prepared witness statements and I was referred in the hearing to relevant documents contained in a bundle of 118 pages. I also reviewed opening submissions and a skeleton argument from the claimant and a written submission from counsel for the respondent and heard oral submissions from each of them Facts[8]I make the following limited findings of fact to the extent required to determine the specific point before me.[9]The claimant started work for the respondent on 21 October 2021 and passed his probation on 21 January 2022.[10]From some time in or around Easter 2022 the claimant was involved in a dispute with a colleague, Henry Wallace, which involved first the claimant raising a complaint and a grievance against Mr Wallace, and subsequent grievances raised by Mr Wallace against the claimant. Despite a code of conduct being introduced to help the two employees to work together, the disagreements continued until Mr Wallace left his employment in August 2023.[11]On the 4 August 2023, in one of his regular one to ones with the claimant, Mr Laird, the claimant’s line manager raised the fact that he was not “impressed with [the claimant’s] recent interactions” with another employee, Lucy Whittlestone.[12]On the 2 October 2023, Mr Laird raised a further issue with the claimant about the tone of a message he had sent on a group chat on slack, (a messaging app used by the respondent for work-related messages). The slack group included two colleagues, Ms Whittlestone and Chris Rudd, as well as Mr Laird. The claimant was warned that people would not want to work with him if he communicated in this manner. The claimant did not accept that the message he had sent was not a suitable message and maintained that it was appropriate. The meeting concluded with Mr Laird stating that he disagreed.[13]Following this meeting and on the basis that the claimant had not accepted that the message was inappropriate, Mr Laird issued the claimant with an informal warning on Friday 13 October 2023 (set out in a letter dated 11 October 2023) in relation to the tone and content of the message which the claimant had posted. The claimant was instructed to cooperate with colleagues and to treat them with respect both in person and when messaging them. The claimant was warned that should his conduct not improve Mr Laird would “have no hesitation in moving directly to formal disciplinary action”.[14]The claimant was on sick leave from 16 to 22 October 2023.[15]In a letter dated 18 October 2023 the claimant set out a detailed appeal against the informal warning used the phrase ”witch hunt” twice, challenging the process (and fairness) of the informal warning, referred to the threat of disciplinary action and stated: “I would like to have all further meetings with a representative”. He also suggested that it might be best if he worked from home.[16]On or around this time, the claimant’s colleague, Ms Whittlestone, raised a grievance against the claimant.[17]On 23 October 2023, the claimant and Mr Laird, had a further meeting in the presence of Ms Sara O’Reilly, office manager. No formal invite was sent inviting the claimant to this meeting and the claimant was not told what was to be discussed. Mr Laird’s intention was to enter into a pre-termination negotiation discussion with the claimant, which he anticipated would be “protected” and inadmissible under Section 11A of the ERA. Mr Laird confirmed in his evidence that he was mindful that the claimant had found the previous grievance process with this colleague, Mr Wallace, difficult, and wished to offer an alternative to being investigated again, and that the claimant had not accepted the informal warning give to him following the discussion on the 2 October 2023.[18]In the meeting the claimant was told that a grievance had been raised against him by a colleague, and that an alternative to an investigation of that grievance was entering into a “confidential settlement agreement” to bring the employment relationship to an end. The claimant was told that the details were in a letter (which has been pre-prepared) and this was handed to him. The claimant referred to the fact he did not think it was fair that his grievance had not been investigated, and was told it would be investigated if he did not accept the offer. The claimant then asked why the respondent was trying to get rid of him and was told that the offer was an option to consider. The question and response were repeated. The claimant then refused the offer and said he was not interested in a settlement, and Mr Laird “said he should take time to read the letter”. The claimant was told that he could decline the proposal, and it would have no impact on the outcome of the grievance. The claimant was offered some paid leave to consider the offer, referred to as gardening leave. The claimant was distressed by the conversation. The claimant left the meeting with the letter still un-read.[19]During the meeting I find that reference was made to a confidential proposal but that the words without prejudice were not used and the claimant was not given a clear explanation of the effect of s111A ERA.[20]The letter handed to the claimant and dated 11 October 2023 was headed “Confidential Settlement Proposal” and referred to the discussion on 2 October 2023 concerning the claimant’s conduct to his colleagues, and the grievance raised against him, which had not yet been investigated. The claimant was informed that: “should the grievance be upheld, we may then decide whether it may be appropriate to invite you to a disciplinary hearing”. The letter set out that there was no obligation to enter into a discussion about the proposal and it would have “no bearing on any later disciplinary procedure or subsequent decision taken”, if no agreement were to be reached. The letter then set out the proposed terms and offered a further meeting to discuss the proposal. It recorded that it was the respondent’s intention that the letter would be covered by section 111A of the Employment Rights Act 1996 and then set out that this meant “that the offer we are making and any subsequent discussion about it may not be admissible in any subsequent unfair dismissal claim.” The letter referred the claimant to ACAS Code of Practice on Settlement Agreements.[21]The claimant read the letter after the meeting and called approximately half an hour after the meeting at on or around 15:35 to confirm the offer was rejected and that he would be in the office the next day.[22]In line with the reference in the letter to the ACAS Code, the claimant also contacted ACAS and discussed the settlement process with a conciliator.[23]The claimant then sent a settlement proposal dated 23 October 2023 and headed “This letter is written without prejudice” setting out a counter-offer proposing termination of his employment on agreed terms with effect from 31 December 2023.[24]On the same day, 23 October 2023, the claimant also submitted a grievance against Mr Laird.[25]Mr Laird sent an email to the claimant at 8:36 on 25 October 2023 headed “Confidential and Without Prejudice” acknowledging the letter of appeal of 18 October 2023, two data subject access requests sent by the claimant, the claimant’s grievance letter and rejecting the counter-offer made by the claimant.[26]The claimant sent an email to Mr Laird in response at 9:06 quoting from the Mr Laird’s earlier email and stating: “I guess this means that you were using your grievance procedure to bully me out of my job”.[27]Mr Laird sent a further email to the claimant on 25 October 2023 at 11:28, refuting the allegation that the claimant was being bullied out of his job, confirming that a grievance had been received against the claimant and confirming that the respondent would be in touch about both grievances.[28]On 20 December 2023, the claimant sent an email to Mr Laird at 13:13 referring to the fact the felt bullied, including at the meeting on 23 October 2023, and raising a number of other concerns.[29]In a letter dated 21 December 2023, headed, “This letter is written without prejudice”, the claimant made a further settlement proposal.[30]Mr Laird rejected the claimant’s proposal in an email dated 22 December 2023.[31]The claimant responded by setting out his comments on Mr Laird’s email of 22 December 2023 on 27 December 2023.[32]On 12 January 2024 a grievance investigation meeting was held between Stephanie Fosh of Pure Human Resources, an external HR company, and the claimant in connection with his grievance against Mr Laird dated 23 October 2024 and a subsequent grievance the claimant had raised against Ms Whittlestone dated 14 November 2024. In this meeting the claimant re-iterated the reference to a “witch hunt” and suggested that the grievance made by Ms Whittlestone (referred to in the 23 October meeting) had been made up. As the grievance had been referred to in the 23 October 2023 meeting and the follow-up letter, I do not find this to be the case and find that Ms Whittlestone had either already brought or in the alternative had indicated that she intended to bring a formal grievance against the claimant.[33]The claimant and Mr Laird subsequently attended mediation, and a Mediation Agreement dated 16 January 2024 was drawn up and signed by Caroline Cox on 17 January 2024.[34]The claimant was dismissed on 16 February 2024.[35]On 16 February 2024 the claimant sent a further letter/email headed “This letter is written without prejudice” to Mr Laird proposing revised settlement terms. The claimant chased for a response to his settlement offer on 24 February 2024 and on 29 February 2024 confirmed that the early conciliation had been completed. The Law Without Prejudice
The Law
[36]The purpose of the without prejudice rule is to encourage parties to settle disputes without resort to litigation. The principle is that where there is a dispute between the parties any written or oral communications between them which are genuine efforts to resolve their disputes will not generally be admitted in evidence at a subsequent hearing of the claim.[37]In considering whether without prejudice privilege applies the Tribunal must consider the purpose of the relevant communications.[38]The protection of the without prejudice rule only arises if and when the parties are in dispute with one another. This means that the parties must be conscious of at least the potential for litigation, even if neither intends it as an outcome, (Framlington Group Ltd v Barneston [2007] IRLR 598). A v B and another [EAT 0012/2013] is authority for the proposition that it is sufficient that one party believes there may be the potential for litigation.[39]Counsel has also referred me to the case of Portnykh v Normura International plc [2014] IRLR 259 in support of the principle that whilst not in every case, the offer of a compromise agreement (now settlement agreement) will “very often” mean that there is a dispute or potential dispute[40]Without Prejudice protection may be disapplied if there is unambiguous impropriety.[41]Counsel has also referred me to the case of Swiss Re Corporate Solutions Ltd v Sommer [2022] IRLR 650 in support of the fact that there is nothing inherently wrong in referring to “a potential disciplinary process and a finding of unambiguous impropriety will depend on rigorous analysis of what is said and can only be made in the clearest of cases”. I have also been referred to the recent EAT decision in Gallagher v McKinnon’s Auto and Tyres Ltd [2025] IRLR 112 in which it was confirmed that stating that formal procedures would commence is not akin to a threat that disciplinary dismissal will occur if an offer is not accepted, and that unfairness is not synonymous with impropriety.[42]The absence of the words “without prejudice” will not be fatal if the negotiations meet the principle. For example, in Hawkes v Brewin Dolphin Securities Limited ET [2305111/05] an employment tribunal accepted that a conversation described as off the record was clearly conducted on a without prejudice basis, despite the fact that the specific words “without prejudice” had not been used. Section 111A Employment Rights Act 1996 (“section 111A”):[43]Section 111A: Confidentiality of negotiations before termination of employment, provides:(1) Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111. This is subject to subsections (3) to (5).(2) In subsection (1) “ pre-termination negotiations ” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.(3) Subsection (1) does not apply where, according to the complainant's case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.(4) In relation to anything said or done which in the tribunal's opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just ….”[44]For section 111A to apply there is no need for a dispute to be in existence. However, the Tribunal must consider whether anything said or done was improper or connected with improper behaviour, the test of inadmissibility being whether the Tribunal considers such conduct as just.[45]The burden of proof rests with the party alleging the improper behaviour. Submissions[46]The claimant submits that in relation to section 111A: 46.1. firstly, the offer made was not a valid section 111A offer because: 46.1.1. at no point was the claimant told the offer was confidential, without prejudice or protected under section 111A of the ERA; 46.1.2. the offer made was not an independent offer but intrinsically linked to the grievance and therefore is not protected under section 111A ERA; and. 46.2. secondly the respondent’s behaviour during the meeting constituted improper conduct within the meaning of section 111A and it would be just to allow reference to the meeting on 23 October 2023 to be made in the course of the proceedings as the claimant felt pressured and coerced into accepting the settlement. Specifically: 46.2.1. the respondent’s statement that if the settlement offer was not accepted the grievance would be investigated and disciplinary action could follow was akin to blackmail; 46.2.2. the claimant says he repeatedly refused the offer and Mr Laird continued to insist and pressure the claimant to reconsider; 46.2.3. the claimant was told he would be excluded from the company on gardening leave, effective immediately, which added further pressure to accept the offer; 46.2.4. the respondent should have considered the claimant’s mental health.[47]The claimant made no submissions in relation to whether reference to the meeting should be excluded or included under the separate test for without prejudice protection.[48]Counsel for the respondent submits that the key issue in relation to the without prejudice rule is whether there was an existing dispute and maintains there was. Counsel submits the offer of settlement terms clearly demonstrates a genuine attempt to settle and the fact that there was not at that time extant, or a threat of litigation does not mean that without prejudice protection does not apply, provided a dispute existed which one or more of the parties could reasonably expect to result in litigation if they did not agree. Counsel submits most formal grievances satisfy the definition of a dispute but even more so when a settlement is offered and reminds the tribunal of the need to explore the surrounding facts.[49]The respondent accepts that the words “without prejudice” were not used either in the meeting or in the letter but Counsel for the respondent submits that it was made clear to the claimant in both the meeting and the letter that this was a confidential offer. The letter fairly set out that the offer was made within the protection of section 111A ERA. Counsel submits that the claimant clearly understood that the offer was intended to be without prejudice as he responded the same day with a “without prejudice” counter-offer.[50]Counsel also invites the tribunal to find that there was no improper behaviour or unambiguous impropriety as improper behaviour must be more than unfairness (Gallagher) and unambiguous impropriety can only be found in the clearest of cases. A statement that the grievance against the claimant would be investigated and may result in disciplinary action does not constitute either unambiguous impropriety or improper conduct.[51]In relation to the claimant’s assertion that his refusal of the offer was not accepted and he was pressurised to reconsider, counsel submits that the Mr Laird did not subject the claimant to undue pressure to reconsider, but that it was appropriate for Mr Laird to invite the claimant to read the letter in order to consider the offer, rather than rejecting the offer out of hand before the claimant had read the whole proposal. In relation to the offer of garden leave, this was likewise intended to give him time to consider the offer, not to pressurise him into accepting it. Discussion and Decision[52]In relation to section 111A, I note that Employment Judge Self’s list of issue records that the parties agreed in the case management hearing that section 111A did apply to the 23 October 2023 meeting and the question for determination at today’s hearing was whether the respondent had been guilty of improper conduct and therefore it would be just to allow reference to the meeting to be made at the final hearing of this matter. It is agreed by both parties that the subsequent correspondence between the parties sent on a without prejudice basis should not be referred to in the final hearing of this matter as being covered by both without prejudice protection and that afforded by section 111A ERA.[53]However, the claimant has argued in this hearing that the 23 October 2023 meeting does not properly fall within the protection afforded by section 111A ERA as he was not expressly told in the meeting that the section 111A applied, and because it was intrinsically linked to the grievance raise against him. I therefore consider this point first.[54]I do not accept the claimant’s submissions and conclude that the meeting does as originally acknowledged by both parties and recorded by Employment Judge Self in the Case Management Order fall within the protection afforded by section 111A ERA.[55]The wording of the statute expressly provides that: “(1) Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111. (2) In subsection (1) “ pre-termination negotiations ” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.” (my italics)[56]There is not, as the claimant suggests, any specific statutory requirement that section 111A is specifically referred to in such discussions, although this issue is considered further in relation to “improper conduct” below. Likewise provided the definition set out in section111A is met, which I am satisfied it is, the fact that one of the triggers for the offer being made was the grievance that had been raised against the claimant by another employee does not take it outside the statutory definition of “any offer made or discussions held” “with a view to [employment being] terminated on terms agreed between the employer and employee”. As the claimant on his own evidence understood that an offer was being made to him to accept a settlement and leave his employment in the meeting (and was distressed by the offer) , I am therefore satisfied that the meeting on 23 October 2023 falls within section 111A ERA.[57]I next consider whether there was any improper conduct on the part of the respondent which would under section 111A (4) allow me to consider if it would be just to allow reference to be made to the conversation in these proceedings. I conclude that there was no such improper conduct. Although the claimant was given no notice of the purpose of the meeting, I accept that the respondent’s intention was to make the offer by handing the letter to the claimant which set out the offer in full and explained the protection afforded by section 111A ERA, and not to require the claimant to respond to the offer in that meeting. The fact that the claimant refused to read the letter in the meeting meant that the detail of the offer was not communicated to him, but as concluded above, it is clear from the claimant’s own evidence that he understood that an offer was being made for him to accept a settlement offer and leave his employment.[58]I do not find that Mr Laird was pressurising him to accept the offer, which would have been inappropriate, but conclude that Mr Laird was asking the claimant to read the letter and the proposal before giving his answer. I further conclude that Mr Laird was seeking to reassure the claimant that he had an option to accept a settlement offer but that he still had the alternative option for the grievance to be investigated.[59]Neither party have suggested that the reference to one potential outcome of the grievance being disciplinary action against the claimant was mentioned in the meeting; this was set out in the letter. I do not in any event conclude that a factual statement that this may be an outcome constitutes blackmail or improper conduct as the claimant alleges and note that the ACAS Code on Settlement Agreement states that it is not improper conduct to factually state the likely alternatives if an agreement is not reached, including the possibility of starting disciplinary process, if relevant.[60]I further conclude that offering the claimant some paid time away from the work-place to consider the offer was not undue pressure. The claimant seeks to argue that he felt pressurised and excluded by the proposal to place him on garden leave, but within half an hour of the end of the meeting, and having read the letter, he refused the offer and confirmed he would be attending work the next working day. The claimant subsequently engaged in negotiations and made a counter-offer headed without prejudice later that same day. I do not conclude that the offer of some time to consider a proposal is improper conduct on the part of the respondent.[61]Lastly, I do not accept that there was a failure to consider the claimant’s mental health that amounted to improper behaviour. I accept Mr Laird’s evidence that the offer was in part made because he anticipated that a further grievance investigation following the grievance made against the claimant might be difficult for the claimant. I conclude that the fact that the claimant was given the proposal in writing, was not asked to respond in the meeting, and offered time to consider the proposal on paid leave (bearing in mind that he had previously asked to work from home) do not support the claimant’s contention that there was any improper behaviour by reason of a failure to take his mental health into account.[62]I therefore conclude that the fact of the meeting on 23 October 2023, the offer made, all subsequent without prejudice communications between the parties and all references to them are protected under section 111A ERA and cannot be referred to in these proceedings[63]Having concluded that Section 111A ERA is engaged in relation to the unfair dismissal claim, I next consider whether the meeting on 23 October 2023 was covered by without prejudice privilege which would also preclude reference to the meeting in relation to the disability discrimination claim.[64]In order to determine if without prejudice privilege applies, I need to decide if there was a dispute between the parties at the time of the meeting on 23 October 2023 and conclude that at least one of the parties must have been conscious of at least the potential for litigation, even if neither intended it as an outcome.[65]I am not persuaded by the respondent’s argument that there had been an ongoing dispute with Mr Wallace, given that Mr Wallace had left his employment in August 2023, prior to the meeting on 23 October 2023. Leaving aside the question as to whether this could at any time have been a relevant dispute, it had clearly ended by the time of the meeting on 23 October 2023. It is therefore only relevant to the extent that it was in the mind of Mr Laird when a similar situation appeared to be emerging in relation to Ms Whittlestone.[66]In relation to the potential dispute between Ms Whittlestone and the claimant, I am also not persuaded that this is a relevant dispute, as the without prejudice proposal was the proposed termination of the claimant’s employment on agreed terms; for these discussions to be protected there had to be a dispute between the claimant and the respondent as his employer, not a dispute with another employee. In his evidence Mr Laird referred to his concern that the claimant had found the previous grievances involving Mr Wallace difficult, so he wished to give him another option as well as resulting from the claimant’s refusal to accept that he had posted an inappropriate message in slack. Had the offer only been made, in order to present the claimant with an option to avoid the stress of another grievance investigation then there would be no dispute between the parties. However, Mr Laird also referred to the claimant’s response to the informal warning and I conclude that there was a relevant dispute between the parties relating to the claimant’s employment with the respondent in which the potential for litigation was in the contemplation of Mr Laird as managing director of the respondent for the following reasons: 66.1. At the meeting on the 2 October 2023, the claimant did not accept that the message he had sent was not a suitable message and maintained that it was appropriate. The meeting concluded with Mr Laird stating that he disagreed with the claimant. 66.2. As a consequence, the claimant was issued with an informal warning on Friday 13 October 2023 (set out in a letter dated 11 October 2023) in relation to the tone and content of the message which the claimant had posted. The claimant was warned that should his conduct not improve Mr Laird would “have no hesitation in moving directly to formal disciplinary action”. 66.3. The claimant then went on sick leave and on 18 October 2023, appealed against the informal warning used the phrase ”witch hunt” twice, challenging the process (and fairness) of the informal warning, referred to the threat of disciplinary action and stating: “ I would like to have all further meetings with a representative”. 66.4. The settlement proposal, although not expressly headed without prejudice did state it was ”confidential” and expressly referred to section 111A ERA, to the possibility of disciplinary action following the grievance investigation, and to the fact that discussions could not be referred to in any future unfair dismissal claim.[67]I also conclude that the possibility of litigation was in the claimant’s mind as he had referred to a witch hunt against him; believed that the respondent was trying to force him out of his employment and responded to the offer with a proposal headed “without prejudice” the same day.[68]I am further satisfied that the respondent’s proposal was a genuine attempt to resolve a situation which it could reasonably be expected would escalate given the multiple grievances raised previously in connection with the inability of Mr Wallace and the claimant to work together effectively (resolved only by Mr Wallace’s exit from the business); the fact that the claimant was not prepared to accept his line manager’s rebuke for the inappropriate slack message; and had immediately appealed against the informal warning and indicated that he required representation at all future meetings. The possibility of disciplinary action was self-evidently in Mr Laird’s contemplation as he referred to it expressly twice and given the claimant’s propensity to engage with internal processes, there could be a reasonable expectation that the situation would escalate with the potential for a legal claim.[69]I have concluded that there was a relevant dispute between the parties which the offer was a genuine attempt to resolve. In relation to the fact that it was not expressly referred to as without prejudice, I am satisfied that the intention was clear, given that that it was referred to as confidential, and the claimant responded immediately to the offer which he refused with a counter-offer headed “without prejudice”. I am therefore satisfied that without prejudice privilege applies.[70]I lastly need to consider the respondent lost that protection because of any unambiguous impropriety. Having concluded that there was no improper conduct on the part of the respondent I conclude that there was no unambiguous impropriety for the same reasons.[71]I therefore conclude that references to the meeting held on 23 October 2023 and documents which refer to it and subsequent negotiations are also privileged within the “without prejudice” rule and cannot be referred to in these proceedings. Approved by:
The Law
The Law
[1]The claimant has applied for a reconsideration of the judgment dated 8 March 2025 which was sent to the parties on 24 March 2025 (“the Judgment”). The grounds are set out in the claimant’s email to the tribunal dated 2 April 2025.[2]Under Rule 69 of the Employment Tribunal Procedure Rules 2024 (the Rules) an application for reconsideration under Rule 68 of the Rules must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit.[3]The grounds for reconsideration are only those set out in Rule 68, namely that it is necessary in the interests of justice to do so.[4]Rule 70(2) provides that if there is no reasonable prospect of the judgment being varied or revoked,[ ….]. the application must be refused.[5]The grounds relied upon by the claimant are these: 5.1. The Tribunal failed to adequately assess whether the claimant was subject to undue pressure. Specifically, the claimant alleges that he was threatened with disciplinary action. The claimant asserts that this is coercion which violates the principles set out in the ACS code. 5.2. The Tribunal did not address the fact that a settlement offer was made before an investigation into a grievance raised against the client had been undertaken, which the claimant relies on as a further breach of the ACAS Code. 5.3. The Tribunal failed to fully assess the fact that although there was technical compliance with the 10 day consideration period under the ACAS Code of Practice the claimant did not have sufficient time in practice to consider the offer made. 5.4. The claimant raises general concerns about the fairness of the hearing on the basis that the significant breaches of the ACAS guidelines outlined above were not reflected in the judgment and on the basis that the claimant states that he was not afforded a fair opportunity to explain his position, provide evidence or respond to clams made during the proceedings.[6]The earlier case law suggests that the interests of justice ground should be construed restrictively. The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful, he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.[7]More recent case law suggests that the "interests of justice" ground should not be construed as restrictively as it was prior to the introduction of the "overriding objective" (which is now set out in Rule 3 of the Rules). This requires the tribunal to give effect to the overriding objective to deal with cases fairly and justly. As confirmed in Williams v Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the "interests of justice" ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council v Marsden [2010] IRLR 743, the EAT confirmed that it is incorrect to assert that the interests of justice ground need not necessarily be construed so restrictively, since the overriding objective to deal with cases justly required the application of recognised principles. These include that there should be finality in litigation, which is in the interest of both parties.[8]As recorded in the judgment dated 8 March 2025, for the hearing on the 19 February 2025 the claimant had prepared a witness statement, a bundle of documents comprising 118 pages had been provided, and the claimant submitted both an opening statement and a skeleton argument in writing which were considered before judgment was reached. The claimant also made oral submissions at the hearing.[9]In relation to the first ground set out at paragraph 4.1 above, this is addressed at paragraphs 57, 58 and 59 in the Judgment. Paragraph 59 states: “Neither party have suggested that the reference to one potential outcome of the grievance being disciplinary action against the claimant was mentioned in the meeting; this was set out in the letter. I do not in any event conclude that a factual statement that this may be an outcome constitutes blackmail or improper conduct as the claimant alleges and note that the ACAS Code on Settlement Agreement states that it is not improper conduct to factually state the likely alternatives if an agreement is not reached, including the possibility of starting disciplinary process, if relevant”.[10]There is therefore no reasonable prospect of the Judgment being varied or revoked on this point.[11]In relation to the second ground set out at paragraph 4.2 above, this is addressed I the findings of fact at paragraph 18 of the Judgment which records: “In the meeting the claimant was told that a grievance had been raised against him by a colleague, and that an alternative to an investigation of that grievance was entering into a “confidential settlement agreement” to bring the employment relationship to an end. The claimant was told that the details were in a letter (which has been pre-prepared) and this was handed to him. The claimant referred to the fact he did not think it was fair that his grievance had not been investigated, and was told it would be investigated if he did not accept the offer. The claimant then asked why the respondent was trying to get rid of him and was told that the offer was an option to consider. The question and response were repeated. The claimant then refused the offer and said he was not interested in a settlement, and Mr Laird “said he should take time to read the letter”. The claimant was told that he could decline the proposal, and it would have no impact on the outcome of the grievance.”[12]Given the findings of fact made, there is no reasonable prospect that any further consideration of this issue would result in the Judgment being varied or revoked.[13]In relation to the third ground set out at paragraph 4.3 above, the claimant has confirmed in his application that the recommended time limits (10 days) set out in the ACAS code were complied with. He did not raise the time frame as an issue in his opening argument, his skeleton argument or otherwise at the hearing and so this has not been expressly addressed in the Judgment. However, given the findings as recorded at paragraphs 57 to 60 that there was no improper conduct or undue pressure and the fact that there was no breach of the ACAS Code on this point , I conclude that there is therefore no reasonable prospect of the Judgment being varied or revoked on this point.[14]In relation to the final point set out at paragraph 4.4 above, the alleged breaches of the ACAS Code were not set out in the claimant’s witness statement, opening argument or skeleton argument which all focussed on the requirements of Section 111A. However, the written offer made by the respondent referred to the ACAS Code of Practice (paragraph 20 of the Judgment) and reference is also made to the ACAS Code of Practice at paragraph 59 of the Judgment. Having considered the claimant’s representation that insufficient reference was made to the alleged breaches of the ACAS Code in the Judgment I am satisfied that there is no reasonable prospect of the Judgment being varied or revoked even if the claimant were to be given a further opportunity to re-frame his submissions with a more detailed reliance on these alleged breaches of the ACAS Code, given that the correct legal test was applied in considering the provisions set out in section 111A ERA and the legal principles relevant to without prejudice protection.[15]I further conclude that whilst the claimant’s representations were not ultimately accepted, he was given a fair opportunity to provide evidence by way of his witness statement and provision of documents and by asking questions of Mr Laird who gave evidence for the respondent, and to explain his position both orally during the hearing and by submission of two written documents (one an opening statement and one a skeleton argument).[16]Accordingly, the application for reconsideration pursuant to Rule 68(1) is refused because there is no reasonable prospect of the Judgment being varied or revoked. Approved by:[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.[2]The claimant caused or contributed to the dismissal by blameworthy conduct and it is just and equitable to reduce the compensatory award payable to the claimant by 100%.[3]There is a 100% chance that the claimant would have been fairly dismissed in any event.[4]The complaint of direct disability discrimination is not well founded and is dismissed.[5]The complaint of harassment related to disability is not well founded and is dismissed.[6]The complaint of a failure to make reasonable adjustments for disability is not well founded and is dismissed. Case Number: 6000938/2024 Approved by: