Miss T Morris v East Midlands Ambulance Service NHS Trust: 6020847/2025

EMPLOYMENT TRIBUNALS
Case No 6020847/2025
Between
Miss Tamara MorrisClaimantEast Midlands Ambulance Service NHS Trust Record of a Preliminary Hearing at the Employment TribunalRespondent
Before
Employment Judge M ButlerDate 6 February 2026

JUDGMENT

The judgment of the Tribunal is that the letter dated 16 May 2025, being a letter sent by the Respondent to ACAS and forwarded to the Claimant is protected by litigation privilege and discloses no unambiguous impropriety by the Respondent to override that privilege.

REASONS

[1]Whether the letter in question dated 16 May 2025 was subject to litigation privilege or was not due to unambiguous impropriety was first raised in a Preliminary Hearing before Employment Judge Broughton on 19 November 2025 which was attended by the Claimant and, for the Respondent, Mr Cullen of Counsel. EJ Broughton listed today’s hearing to determine the issue and Notice of Hearing was sent to the parties on 25 November 2025.[2]EJ Broughton made orders in preparation for today’s hearing which required the parties to make written submissions which they both have done. The parties agreed to the issue before me today being determined on the papers without a hearing.[3]I have carefully considered those submissions in determining this issue. The Letter of 16 May 2025[4]The letter in question was sent initially by the Respondent to ACAS and then on 16 May 2025 by Mr A Rahman, ACAS Public Sector Team, to the Claimant. Underneath the signature line is a notice which says “information given strictly without prejudice to ACAS”.[5]The letter bears the case heading and early conciliation certificate number and it was sent by email from “case@acas.org.uk to Tamara.Morris2@hotmail.com on Friday 16 May at 16:36” and reads: “Hi Tamara I hope this email finds you well. We have been given permission to share this email with you below: It is unlikely matters can be resolved through EC because internal processes have been invoked which will need to be conducted in order to assess the merits of any claim. However, I have conducted an initial review from which I can establish that Miss Morris’s attendance has been very poor during her initial employment by the Trust. While it is acknowledged that she has underlying conditions, equality law does not require an employer to accept virtually no attendance at work and it is right and proper for the employer to ask questions and take steps to improve attendance. The only adjustments that I can establish have been recommended to the employer to remove any disadvantage caused by Miss Morris’s underlying conditions are additional breaks. It is difficult to implement that adjustment when the employee is absent from work. If Miss Morris can identify the adjustments she feels have not been made for her alleged disabilities, I can take further instructions. I note Miss Morris feels that the reference to a probationary review is retaliatory. Ongoing reviews during the probationary period are intended to be supportive but also allow for the employee and the employer to assess their suitability to the role. They are a part of the Respondent’s Probationary Policy. Due to Miss Morris’s extensive absence, normal reviews could not take place and it was entirely proper for the Trust to seek to schedule a probationary review meeting. If it had not sought to schedule a review meeting, Miss Morris could criticise it for failing to follow its own policy. In terms of the alleged retaliatory grievance, my client cannot prevent an employee who feels genuinely aggrieved from raising their concerns. My client is committed to managing all employees concerns in a proportionate way and it will now investigate both grievances. It is not accepted that the Trust attempted to dissuade Miss Morris from pursuing a formal grievance. My client’s policy requires consideration of informal resolution in the first instance as formal processes can be very distressing for all concerned and informal resolution is often more likely to achieve long lasting repair of relationships. Miss Morris was in agreement with informal means being attempted in the first instance as formal processes can be very distressing for all concerned and informal resolution is often more likely to achieve long lasting repair of relationships. Miss Morris was in agreement with informal means being attempted in the first instance and my client was fully supportive of her being accompanied by her mental health support in the process. A facilitated meeting between Miss Morris and her former line manager was attempted and Miss Morris was given a full opportunity to outline her concerns about the conduct of her former line manager. The meeting broke down when Miss Morris became very agitated and upset as her line manager was given the opportunity to set out his position. She was in clear distress and so the meeting was stopped. Her concerns will now therefore be addressed formally and the process for that has been commenced. Miss Morris’s proposed resolution has been discussed with my client but, unfortunately, is not achievable. Given the current financial climate in the NHS, my client is unable to approve any vacancies other than frontline roles. A number of vacancies have been frozen, including one in the wellbeing team. As such, it cannot redeploy Miss Morris. It would be able to agree a reference, the wording of which could be discussed but it could not be misleading about Miss Morris’s attendance record. There may be scope for my client to agree limited periods of reimbursement of salary and credit of annual leave taken so that this may be paid in lieu on termination if that is the outcome Miss Morris seeks. I am advised of Miss Morris’s is due to go into half pay from 6 June 2025 and that leave take which my client may be able to credit back and pay in lieu is as follows (calculation of 20 days leave). I look forward to hearing from you. Kind regards Ahmudur” Submissions[6]I briefly summarise the submissions made on behalf of the parties.[7]The Respondent submitted that the letter in question was not admissible in these proceedings as it is protected by statute and common law without prejudice privilege. Reference was made to Section 18(7) Employment Tribunals Act 1996 which provides that anything communicated to a Conciliation Officer in connection with the performance of his functions shall not be admissible in evidence in any proceedings before an Employment Tribunal except with the consent of the person who communicated it to that officer. Secondly, the Respondents submit that if a letter is not protected by Section 18(7) it is protected by common law without prejudice privilege.[8]In particular, the Respondent denies there is any unambiguous impropriety in the letter and excluding the letter from the evidence would not act as a “cloak for perjury, blackmail or other “unambiguous impropriety”” (Unilever Plc v The Proctor and Gamble Co [2000] 1WLR 2436). Essentially, the Respondent submits that in the absence of unambiguous impropriety the courts consistent emphasis on the importance of allowing parties to speak freely in the course of settlement negotiations should be preserved. As a consequence, cases in which the principle of unambiguous impropriety has been established have been truly exceptional. The without prejudice rule is to exclude evidence which is relevant and would, therefore, assist one or other party. This supports the aim of encouraging settlement of disputes and this rule can only be displaced by very clear and very serious wrongdoing. Merely making a settlement offer or other accommodation falls below the threshold required for overriding the without prejudice rule.[9]The Respondent submits that the comments in the letter fall well below the threshold at which unambiguous impropriety may be successfully pleaded.[10]The Claimant’s submissions began with three in principle statements. These were:10.1 Section 18(7) Employment Tribunals Act 1996 does not apply because the communication relied upon was not a communication to ACAS but a communication from ACAS to the Claimant expressly authorised by the Respondent;10.2 Common law without prejudice privilege does not arise because the ACAS Conciliator emailed the Claimant stating “We have been given permission to share the email with you below”; and10.3 The correspondence contains unambiguous impropriety including discriminatory misrepresentations, knowingly false statements, retaliatory assertions concerning the Claimant’s grievance activity, conduct calculated to undermine the Claimant’s protected act, and the misuse of early conciliation as a means of discrediting the Claimant.[11]In developing these statements the Claimant asserted that there had been no genuine negotiation and that the Respondent explicitly rejected settlement by stating in the relevant letter “It is unlikely matters can be resolved through EC…” She states this is a categorical refusal to engage in settlement. She then goes on to assert there has been unambiguous impropriety due to the direct involvement of an individual accused of victimisation, retaliatory predetermination of a live grievance, knowing misrepresentation of sickness absence, false assertions about reasonable adjustments, misrepresentation of probationary review and misrepresentation of the alleged retaliatory grievance.[12]The Claimant concludes that these matters are “exactly the type of conduct the case law excludes from without prejudice protection”.

The Law

[13]Section 18(7) Employment Tribunals Act 1996 provides that: “Anything communicated to a Conciliation Officer in connection with the performance of his functions under any of sections 18A to 18C shall not be admissible in evidence in any proceedings before an Employment Tribunal except with the consent of the person who communicated it to that officer.”[14]I was referred in submissions to a large number of authorities. It is not proportionate to list those here but I confirm I have taken the parties’ references to those authorities into account in reaching my conclusions.

Conclusions

[15]In her submissions the Claimant firstly argues that the letter in question is not covered by the provision of Section 18(7) Employment Tribunals Act 1996. She relies on the fact that the letter was not a communication to ACAS but a communication from ACAS to her sent on the Respondent’s instruction that “We have been given permission to share the email with you below”. She submits that, in these factual circumstances, the letter falls entirely outside the literal statutory protection of Section 18(7).[16]I do not agree with this argument. Indeed, I think it is largely an exercise in semantics. The Respondent’s letter to ACAS was clearly marked “without prejudice”. The letter from ACAS to the Claimant confirms this. The Claimant interprets the reference to “Information given strictly without prejudice to ACAS” is not something that serves only to protect ACAS but refers to the fact that the information was given to ACAS on a without prejudice basis. Further, Section 18(7) provides that the letter sent to ACAS is not admissible in evidence in these proceedings “Except with the consent of the person who communicated it to that officer”. The Respondent has given no consent for the letter to be produced in evidence.[17]But even if the letter was not protected by Section 18(7), I find it would have been protected under the rules relating to common law privilege.[18]There is a long line of authorities supporting attempts by parties in litigation proceedings to settle their differences. The decision in Motorola Solutions v Hytera Communications [2001] QB 744 is particularly relevant in this case. Males LJ said “…. The Courts have consistently emphasised the importance of allowing parties to speak freely in the course of settlement negotiations, (and) have jealously guarded any incursion into or erosion of the without prejudice rule and have carefully scrutinised evidence which is asserted to justify an exception to the rule. Although the unambiguous impropriety exception has been recognised, cases in which it has been applied have been truly exceptional….”. Males LJ went on to say “…. The cases have firmly and rightly set their face against any erosion of the without prejudice rule, even if that means that some statements disclosing or constituting impropriety, albeit not unambiguously so, retain the protection of the rule. The policy choice is that the public interest in settlement of litigation generally outweighs the risk of abuse of the privilege in individual cases”.[19]The Claimant has also introduced arguments suggesting that the Respondent has, in effect, given up their right to privilege in the letter. One of her particular arguments in this regard is that of “forensic deployment”. She argues that the act of submitting the letter to the Tribunal to determine whether it is protected by privilege is in itself submitting the letter to become part of the adversarial process and its prior confidentially is extinguished. She said this argument “aligns with the reasoning in Iqbal v Proactive Personnel Ltd [Case no 1302574/2018] where the Employment Tribunal found that by attaching the communications to ACAS as part of its email to the Tribunal, the Respondent had implicitly given consent to their admission”. With respect to the Claimant, the scenario in Iqbal is completely different to that in this case. There was no letter in this case to the Tribunal and so there could be no “forensic deployment” of the letter into these proceedings.[20]It is not possible in this judgment to consider every single argument raised by the Claimant. Many of the issues raised by the Claimant are raised using emotional phrases which seem to suggest that her various allegations should be accepted as fact even though they have not yet been determined by the Tribunal. This case is still at a preliminary stage where facts have not yet been determined. As an aside, referring back to the “forensic deployment” argument, it would not be possible to determine the preliminary issue before me without making full reference to the letter itself.[21]I have already referred above to the various matters which the Claimant refers to as amounting to unambiguous impropriety. I consider that none of these matters constitute unambiguous impropriety. I make reference here to the decision of the Employment Appeal Tribunal in Swiss Re Corporate Solutions Ltd v Sommer [2022] EAT 78 in which the Respondent’s solicitors’ letter to the Claimant which was marked “without prejudice” was held to amount to unambiguous impropriety. In that case the letter alleged, inter alia, that the Claimant had committed a data breach amounting to a criminal offence, had lied to her employer and her lack of integrity placed her in breach of financial conduct rules. The letter concluded by saying that the Claimant could be summarily dismissed, be convicted of a criminal offence or be fined, all meaning she would find it difficult to find work in the regulated sector in the future. These comments were then followed in the same letter by a settlement offer being made.[22]None of the Respondent’s allegations in this case had been raised at the time of the alleged breaches by the Claimant and, although she was subsequently found to have breached her contract of employment, she was only subjected to informal action. It was held that there was no basis at all for the letter claiming such serious misconduct by the Claimant or that she had committed a criminal offence and the letter amounted to unambiguous impropriety as it was clearly designed to put pressure on the Claimant to accept immediate termination of her employment and was effectively an of abuse of the without prejudice rule.[23]The Claimant in the case before me argues that the letter is fully admissible for a number of reasons. For example, she says it was not a genuine negotiation, was knowingly misleading, was retaliatory and discriminatory and directed by an individual already accused of victimisation. What she seems to completely misunderstand is that, whilst these may be arguments she wishes to pursue at the hearing, at this preliminary stage, they have not been determined by the Tribunal so cannot be relied on to support an allegation of unambiguous impropriety. She goes on to make completely undetermined allegations about factual matters which will no doubt be considered at the final hearing. As such, they simply cannot be relied upon to support her contention that the letter amounts to unambiguous impropriety. The Claimant herself refers to the judgment in Unilever Plc v The Proctor and Gamble Co [2000] 1WLR 2436 but she does not seem to have considered the reference in that case referring to one exception to the without prejudice rule arises where without prejudice negotiations can be admitted “if the exclusion of the evidence would act as a cloak for perjury, blackmail or other “unambiguous impropriety”. This illustrates the threshold which must be met to rely on the unambiguous impropriety principle. With respect to the Claimant, the matters she raise fall a long way short of crossing that threshold.[24]For the above reasons, the letter remains privileged and cannot be admitted into evidence in these proceedings. Approved by: