Mr A Hughes v G. F. Tomlinson Building Ltd & others — 2021

At this preliminary hearing before Employment Judge Hutchinson sitting alone, the tribunal considered whether telephone conversations between Mr Hughes, Stephen Parker and Stephanie Cooper on 9 and 13 January 2020, and later communications between the parties' solicitors, were without prejudice and/or protected conversations under section 111A ERA 1996. The tribunal found there was a dispute at the time of the discussions, that the first part of the 9 January meeting was an open discussion about conduct concerns, and that the second part was a protected conversation which Mr Hughes understood and agreed to enter into.

The tribunal preferred Mr Parker's evidence and contemporaneous notes to Mr Hughes' account. It rejected the allegation that the respondents had threatened police referral, director disqualification, or blackmail, and found no improper conduct sufficient to bring the communications within the unambiguous impropriety exception to the without prejudice rule. It also found that the later correspondence between Stephanie Cooper and Nicola Clarke was ordinary without-prejudice negotiation between experienced employment solicitors, with no contemporaneous complaint of impropriety until later in February 2020.

The tribunal therefore held that the relevant telephone conversations and solicitor communications were without prejudice and protected, and that they should not be referred to in the pleadings or at the final hearing. It also directed that the claimant serve proposed amended further ET1 particulars within 14 days, with consequential case management orders on the list of issues, schedule of loss, disclosure, bundle preparation and witness statements.