In the case of Faithorn Farrell Timms LLP (a surveyors’ practice) and Mrs S Bailey (an office secretary) the Employment Appeal Tribunal considered the admissibility of some without prejudice discussions that took place when the employer and employee were in a dispute over whether the secretary’s part-time hours could continue.

In December the secretary initiated discussions about a settlement agreement and by 7 January 2015 the parties were certainly in dispute. As a result, the secretary’s solicitor wrote to the surveying firm by letter marked ‘without prejudice and subject to contract’. There was then an exchange of correspondence during January. Towards the end of January the secretary raised a grievance in which she referred to matters set out in the without prejudice correspondence and she openly referred to this letter and the settlement discussions in the grievance process.

Eventually the secretary resigned and claimed constructive unfair dismissal and sex discrimination. In her application on form ET1 to the Tribunal she referenced the communication that had taken place between her solicitors and the surveyors’ firm. In its ET3 the surveyors’ firm referred to the secretary having initiated settlement discussions and referenced various of the without prejudice correspondence without suggesting that these were the subject of without prejudice privilege or otherwise inadmissible.

In preliminary hearings the admissibility of the without prejudice correspondence was raised.

The Employment Tribunal decided that the documents were admissible. The basis of the decision was that the without prejudice privilege had been waived and neither the without prejudice common law provisions nor Section 111A prevented a reference to the simple fact that there had been settlement offers or discussions rather than the details of any offers made or discussions held.

On appeal, it was withheld that this was correct in so far as it applied to without prejudice negotiations. However Section 111A does prevent there being any reference even to the fact that such discussions have taken place. Therefore, the correspondence was protected by Section 111A and was inadmissible with regard to the unfair constructive dismissal claim and that Section 111A privilege could not be waived by the parties for this purpose. However, communications were not protected in relation to the discrimination claim under Section 111.

We find that employers are often confused as to when they can have conversations with their employees which are protected from being referred to in any subsequent tribunal proceedings.

This case does give some comfort to employers that even if under common law they have waived privilege, the documents can still be saved from being admissible on an unfair dismissal claim by reason of Section 111A of the Employment Rights Act 1996.