Ms H Williams, QC For the v Respondent — 2020

This was a preliminary hearing before Employment Judge Norris, sitting alone, to decide whether paragraph 12 of the Claimant's grounds of claim contained without-prejudice material and should be struck out. The underlying dispute concerned holiday pay / unlawful deductions, but the hearing did not determine the merits of that claim.

The tribunal heard evidence from the Claimant, Mr Beukers and Mr Calzolari. It accepted that there had been discussions in September and October 2018 about the Claimant's possible retirement, outstanding holiday entitlement, pension and car allowance, but found Mr Calzolari the more reliable witness on the timing and context. The judge found, on balance, that the first and only meeting to discuss the position was on 12 October 2018, and that there was no particular reason for litigation to be in Mr Calzolari's contemplation before then.

Applying the without-prejudice authorities cited in the judgment, the tribunal held that the discussions up to 12 October 2018 were not privileged because there was not yet a dispute in the legal sense. The parties were at an initial commercial stage and had only exchanged opening positions. The position changed once the draft settlement agreement was being exchanged and the Dusseldorf airport meeting had taken place, so later discussions from that point were privileged. Paragraph 12 therefore had to be redacted so that it omitted the privileged material and the date of the meeting, while retaining the non-privileged description of the discussion and the offer for 168 days of accrued holiday worth £68,199.60.