Mr D Sherratt v Life’s Great Group Limited — 2022

This was a closed preliminary hearing before Employment Judge Mark Butler on 21 February 2022. The tribunal was asked to decide whether the meeting of 14 September 2020, and what was said at that meeting, could be relied on in evidence or whether it was protected by without prejudice privilege. The tribunal heard from the claimant and Mr Richard Hayes and considered written and oral submissions for both sides.

The tribunal found that there was already a clear dispute between the parties before the 14 September 2020 meeting. It accepted that Mr Hayes and others had spoken to the claimant about serious FCA compliance issues, that the claimant had denied responsibility, and that the claimant had indicated he would fight any decision legally. It also found that the claimant had been subject to restrictions while the investigation was ongoing.

The tribunal found that Mr Hayes attended the 14 September 2020 meeting in his capacity as the respondent's CEO and Board member, not as an independent mediator or as the claimant's agent. It found that he was exploring the shape of a possible settlement, including the idea of the claimant taking annual leave immediately, resigning after that leave, and leaving as a good leaver. The tribunal did not accept that Mr Hayes made any offer to misrepresent matters to the regulator, and it found that any impropriety alleged did not reach the level of unambiguous impropriety needed to defeat privilege.

The tribunal therefore held that the meeting of 14 September 2020, and the contents of that discussion, were excluded from evidence as privileged. It said it was unnecessary to consider the position under section 111A of the Employment Rights Act 1996. This decision did not determine the merits of the underlying employment claims and did not award any monetary remedy.