'Without Prejudice' Rule Trumps Public Disclosure

The Employment Appeal Tribunal (EAT) has upheld the principle that ‘without prejudice’ communications are not permitted as evidence in court except in very clearly defined circumstances.

Without prejudice communications are those which take place between the opposing sides in a legal dispute that are entered into with a view to reaching a settlement. Making such disclosures ‘without prejudice’ means that the negotiations can be undertaken without the fear that disclosures made for the purpose of settling the dispute will be produced in evidence later.

In principle, the court will only allow the use of without prejudice material as evidence either when a failure to do so would act as a ‘cloak for perjury’ or to prevent a clear impropriety on the part of one or both parties.

In a recent case, a woman who was claiming sex discrimination and victimisation against her ex-employer sought to produce in evidence communications made to her on a without prejudice basis during negotiations prior to settlement of an earlier claim. It was her contention that evidence regarding a refusal on the part of her employer to give her a reference showed that it had ‘reprisal in mind’ from that time onwards and had subsequently discriminated against her either by refusing to provide a reference or by giving her a poor reference when approached. Her ex-employer wished to prevent the evidence from being used.

The Employment Tribunal and (on appeal) the EAT both declined to allow the material to be used as evidence despite the fact that it had already been made public as a result of ‘whistleblowing’ by the woman.