An employee could not disclose the contents of a without prejudice termination proposal in seeking to establish a constructive unfair dismissal case, even where the termination proposal was itself the "last straw" on which the employee sought to ground her constructive dismissal claim

The employer had offered to settle the employee's claim for sick pay in return for her resignation, which she claimed was the "last straw". The contents of without prejudice communications attempting to settle a dispute will normally be protected from disclosure in tribunal proceedings, except where there is "unambiguous impropriety". Recent caselaw has ruled that this exception can extend to evidence of discrimination, victimisation and detriment for whistleblowing, so that the without prejudice cloak will not prevent an employee adducing such evidence in tribunal. The EAT refused to extend this further to permit evidence necessary to establish a constructive dismissal claim. (Brodie v Nicola Ward (t/a First Steps Nursery, EAT

Once tribunal proceedings have begun, letters brought into existence for the purpose of the proceedings have absolute protection from disclosure, and there is no exception for evidence of alleged discrimination or victimisation. (South London & Maudsley NHS Trust v Dathi, EAT)