Cameron Buxton-Wade First v Norfolk Countryside Care Limited Second Respondent: Ian Gibb Open preliminary hearing — 2024

This was a preliminary hearing before Employment Judge S.L.L. Boyes, sitting alone, about whether the contents of the 24 November 2022 meeting between the Claimant and Mary McGivern were protected by the without prejudice rule and/or section 111A of the Employment Rights Act 1996. The Claimant had been employed by Norfolk Countryside Care Limited as a fencer since 1 February 2018. The tribunal recorded that the underlying claim included unfair dismissal, constructive dismissal in the alternative, whistleblowing allegations based on protected disclosure, and an unlawful deduction from wages claim, but it did not determine those merits issues at this hearing.

The tribunal accepted the Claimant's account on the material points. It found that the meeting began as a grievance meeting, but there was no real attempt to explore the substance of his grievances and the discussion quickly moved to the later part of the meeting. The Judge preferred the Claimant's evidence that he was told the email of 6 November 2022 was bullying, that there was reference to a protected conversation, and that there was no reference to a without prejudice conversation. The tribunal also found that the Claimant was told the meeting would be an honest and open discussion, but was not told in advance of the true purpose of the meeting and was not accompanied or represented.

On the facts found, the tribunal concluded that the Respondents had already decided that the employment relationship was to end and that the Claimant was effectively told at the meeting that his employment was being terminated and that there was no other option open to him. It held that the communication was not covered by the without prejudice rule because the purpose of the discussion was to terminate employment, not to negotiate a compromise, and that it would be an abuse of the rule to exclude evidence of how the dismissal occurred. The tribunal also held that section 111A did not apply because there were no pre-termination negotiations with a view to termination on agreed terms, and because the circumstances involved improper behaviour for section 111A purposes.

The practical result was that the Claimant could rely on the full contents of the 24 November 2022 conversation and any documents referring to it at the final hearing. The Respondents' strike out application and alternative deposit application were not determined at this hearing because there was insufficient time. The judgment did not make any award and did not decide the substantive claims themselves.