Mr R Barker v Sanders Senior Living Limited Heard on papers only — 2021

This was a papers-only judgment on the respondent's application about legal professional privilege and without prejudice correspondence. The tribunal considered whether the claimant had waived privilege by his letter to the tribunal dated 30 November 2020 and associated correspondence, and it noted that much of the exchange was not unusual in the context of employment litigation.

The tribunal held that the claimant's letter to the respondent dated 19 August 2020 was not privileged. Although headed "without prejudice", it was sent before there was any dispute between the parties and was treated as a suggestion that they should agree a settlement agreement. Relying on Sang Kook Sub v Mace (UK) Ltd, the judge concluded that the letter could not attract without prejudice privilege on those facts.

The tribunal also held that the conversations between the claimant and Ms Friend on 26, 27 and 28 August 2020 were not privileged. The respondent did not rely on section 111A of the Employment Rights Act 1996, but the judge said that, even if there was still arguably no dispute, the conversations fell within section 111A(iii) ERA in any event.

On the alleged waiver issue, the tribunal found that the claimant's solicitors' letter to the tribunal on 2 December 2020 was conditional rather than a clear waiver. The judge held that there was no clear and unequivocal agreement to place without prejudice communications before the tribunal, and therefore refused the respondent's application. The judge referred to Somatra Limited v Sinclair Roche and Temperley in reaching that conclusion.