Miss G Raja v Starling Bank and 1 other — 2020

At a preliminary hearing by telephone on 19 November 2020, Miss G Raja applied to include her communications with ACAS in the trial bundle. She said the documents would show that ACAS had told her that Starling Bank's position was that she was not going to pass probation and was going to be dismissed, which she said was relevant to her discrimination, whistleblowing and health and safety claims. The respondent opposed disclosure on the basis that ACAS communications are privileged.

Employment Judge Davidson could not decide whether the alleged comment had in fact been made, but proceeded on the claimant's case at its highest. Even on that basis, the tribunal held the statement did not fall within the narrow exception for communications that are a cloak for perjury, blackmail or another unambiguous impropriety. The judge found that the respondent was entitled to advance its position that the claimant's performance was not good enough, that the probation point added little to the respondent's main defence, and that the claimant knew the statement was factually inaccurate and could have addressed it through ACAS.

The tribunal also noted that the conciliation officer does not adjudicate the merits, and that if every comment made to a conciliation officer had to be fact-checked for fear of later use in litigation, the efficacy of conciliation would be affected. The claimant relied on Vernon v London Borough of Hammersmith and Fulham and Ferster v Ferster [2016] EWCA Civ 717, but the tribunal held that the alleged comment did not meet the high threshold for losing privilege. The application was refused.