The assistance of ACAS is often crucial in settling employment claims, particularly where a claimant is not represented. Both parties can speak candidly with ACAS safe in the knowledge that, if the claim does not settle, any communications will not be disclosable before the tribunal, on the basis that they are 'without prejudice'.
This recent case is of concern because an email from the employer’s solicitor to ACAS was allowed to be disclosed to the tribunal to support the claimant’s claim of victimisation.
Ms Vernon was employed by the London Borough of Hammersmith and Fulham (the Council) for a number of years, during which time she made four unsuccessful applications for promotion. She brought an employment tribunal claim on the basis that she had been unsuccessful because of her race. Discussions took place via ACAS around the possibility of settling the claim, which the Council sought to defend on the basis that she was not the most suitable person for the roles and that her report writing was an issue.
In an email sent to ACAS during the course of negotiations, the Council’s solicitor stated that the Council would not be making any offer to settle the claim. She went on to point out that Ms Vernon had made various grammatical and spelling errors in her claim form which the solicitor said her client felt demonstrated that the claimant was not capable of carrying out the role for which she had applied. The claimant saw this email with the permission of the employer and became depressed following it. As a result, she submitted a claim for victimisation saying that, given the comments in that email, it was clear that she was never going to be promoted as a result of having brought claims in the first place. The question therefore arose as to whether the email was disclosable before the tribunal.
Drawing on case law from the Employment Appeal Tribunal, the tribunal took the view that the employer’s solicitor had made points that were not part of the Council’s defence, and that the email could only mean that promotion was never going to be a possibility in the future. It also found that the solicitor’s comments had been made to deter the claimant and to bring her to possible settlement. In light of this, the tribunal found that those comments placed improper pressure on Ms Vernon and that therefore the without prejudice rule was dis-applied. This meant that the email could be used by Ms Vernon to support her victimisation claim.
Employers and their advisers ought to be aware of the principles in this case when negotiating through ACAS. They should not stop talking to ACAS, but they should consider very carefully what they say to ACAS, ensuring any comments they make about the claim against them are in line with the defence as set out in their ET3 form. Employers should also exercise caution when allowing ACAS representatives to pass on written, and indeed verbal, communications to claimants.