Two recent Court of Appeal decisions inform our understanding of the scope of the "without prejudice" rule. In the case of Framlington v Barnetson, the Court of Appeal (overturning the EAT) took a robust approach to the meaning of "dispute" when it found that the "without prejudice" privilege should protect discussions between a Chief Operating Officer and the company from disclosure even where those discussions preceded the eventual termination of his employment, which, itself, was some months before actual litigation was commenced. The focus was on the subject matter of the discussions, rather than their proximity to litigation. The analysis in this case on what constitutes a "dispute" seems to differ from that of Cox J in BNP Paribas v Mezzotero (EAT) in which she held that although a grievance had been lodged and the employer described discussions as "without prejudice" they actually fell outside the scope of the without prejudice rule.

The Court of Appeal in Framlington did not comment directly on the suitability of the "unambiguous impropriety" exception for employment matters (developed in Mezzotero) but it seemed to restore the prominence of the public interest in encouraging settlement through the mechanism of "without prejudice" discussions by holding that "Early settlement of disputes is as important in the employment field as elsewhere".

However, the separate Court of Appeal decision of Brunel v Vaseghi (which upheld the EAT's decision that settlement discussions and a report of the Grievance Panel had been "without prejudice" but that privilege had been waived by the parties) reminds us (obiter) that "it may sometimes be difficult to prove victimisation if the general rule (that remarks made in the course of "without prejudice" discussions cannot be referred to) is applied in its full width". This seems to anticipate the possibility that there will be occasions when without prejudice privilege may be lost if the conduct of the employer gives rise to a claim of victimisation or discrimination, thus, seeming to endorse Cox J's suggestion that the "without prejudice" rule should be applied with particular caution in the employment context. ((1) Framlington Group Limited (2) AXA Framlington Group Ltd v Ian Barnetson [2007] EWCA Civ 502, Brunel University & Anr v Vaseghi & Webster [2007] EWCA Civ 482)