PRIVILEGED CORRESPONDENCE: cannot be used as evidence


Employment lawyers this week welcomed a ruling that 'without prejudice' letters should remain privileged and cannot be used as a tool in constructive dismissal claims, save in exceptional circumstances.



The Employment Appeal Tribunal (EAT) held that an employee was not entitled to disclose the contents of a without prejudice letter to support a constructive dismissal claim, even where she claimed the letter was the 'last straw' that led to her resignation.



The claimant, Carol Brodie, was a teacher and deputy head at First Steps Nursery School in Surrey, which was owned by Nicola Ward. The case before the EAT concerned a long-running dispute over sick pay.



In a without prejudice letter, the employer offered to settle Brodie's claim for sick pay in return for her resignation. The claimant sought to disclose the contents of the letter as evidence of her claim.



Such communications are normally protected from disclosure in court proceedings, except in circumstances were there is dishonesty or 'unambiguous impropriety'.



The EAT rejected the claimant's submission that the letter was exempt on either ground.



Philip Minnis, a partner at Lyons Davidson in Surrey who represented the employer, said: 'Without prejudice correspondence is a common part of the employment landscape where an employer is seeking to resolve an employment matter prior to the issue of proceedings. This case should reassure employers that they can continue to use such negotiations without fear of it being used as a tool in a constructive unfair dismissal case.'



Catherine Baksi