Mr A MacPhail, counsel For the v Mr J Laddie, one of Her Majesty’s counsel with Mr N Roberts, junior counsel — 2019

This was a preliminary hearing before Employment Judge Elliott on 2 and 3 July 2019. The respondents applied to strike out paragraphs 514-518 of the Particulars of Claim, which concerned a 27 July 2018 letter marked "without prejudice, subject to contract" offering six months' pay in lieu of notice, a compensation sum of £80,000, and agreed messaging. The claimant relied on that letter as whistleblowing detriment 50 and argued that there was no valid without prejudice dispute and that the respondents' conduct amounted to unambiguous impropriety.

The tribunal held that without prejudice privilege attached. It found that there was already a dispute between the parties by 16 July 2018, when the claimant's third grievance and solicitors' correspondence referred to potential Employment Tribunal whistleblowing proceedings and interim relief if matters were not resolved. Applying Barnetson and Portnykh, the tribunal said it was not necessary for the dispute to be specifically about termination of employment; it was enough that litigation was reasonably contemplated if the matter could not be resolved.

The tribunal rejected the claimant's case on unambiguous impropriety. It found that the letter was a relatively routine compromise offer, that the asserted threat was at most an implied one and was not made out, and that even if there had been some threat it would not have approached the level required by Ferster. The tribunal also said it had no proper evidential basis to accept the claimant's allegation about an off-the-record discussion, and noted that he had not given evidence and was represented by solicitors. Paragraphs 514-518 were therefore inadmissible, and paragraph 513 was also excluded by consent.