“Without prejudice”

Case 2: The facts

Ms Brodie, deputy head of a nursery school, brought a claim of unfair constructive dismissal. She claimed she had resigned because she had been wrongfully denied contractual sick pay. The last straw was when she received a letter from her employer’s solicitors offering to settle her tribunal claim for the sick pay in return for £4,140 and her resignation.

The employment tribunal said that the letter was privileged under the “without prejudice” rule and could not be referred to in the unfair dismissal case. Brodie appealed.

The ruling

The EAT upheld the tribunal’s decision. The “without prejudice” rule is founded on public policy, encouraging parties to negotiate without fear of being quoted later in a tribunal if, as here, no settlement is reached. Sometimes that principle conflicts with the desirability of a tribunal having all the available evidence to reach a just conclusion. There are some limited exceptions, for, example, to reveal dishonesty or unambiguous impropriety, but neither applied on the facts of this case.