Ms J Llewelyn v Oyster Bay Systems Limited Heard: via telephone — 2020

This was a preliminary telephone hearing on the respondent's application that correspondence between the parties should be ruled inadmissible under the without prejudice rule. The tribunal recorded that the claimant had raised a grievance on 20 March 2019 about treatment she said she had experienced in February 2019, and that on 8 June 2019 Mr Michael Breach sent a letter of apology which ended by asking her to consider talking about a private settlement. The claimant replied on 13 June 2019 saying she had taken legal advice, that she intended to bring proceedings when well enough, and that a private settlement seemed a realistic first step. Further correspondence followed in June 2019, after which the claimant resigned and brought proceedings alleging constructive unfair dismissal.

The tribunal applied the principles in Rush & Tompkins, BNP Paribas v Mezzotero and Framlington Group Ltd v Barnetson. It held that the March grievance had not itself created an existing dispute, because it was a complaint about treatment which the respondent accepted did not threaten litigation. The judge found that the June 8 letter was, for the most part, an apology and acceptance of what had happened, and that the stage had not been reached where there was an extant dispute for without prejudice purposes.

The tribunal also held that, even if there had been an existing dispute, the letter was not a genuine attempt to settle it. No settlement proposal was set out, and when the claimant asked the respondent to explain what it considered reasonable, no proposal was forthcoming. The respondent's application was therefore refused, and the relevant June 2019 correspondence was held to be admissible for the purposes of the claimant's case. No merits findings were made on the underlying unfair dismissal or breach of contract claims in this judgment.