Ms A Woods, CIPD associate For the v Respondent — 2019

At this preliminary hearing on 23 April 2019, Employment Judge George considered the respondent's application to exclude or redact passages in the claimant's witness statement, impact statement and bundle materials dealing with without prejudice and without prejudice save as to costs communications. The parties had agreed that the without prejudice discussions ran from 4 July 2017 to 27 October 2017.

The tribunal held that the communications were covered by without prejudice privilege and that there had been no clear and unambiguous waiver through the draft bundle. It accepted the respondent's objections to paragraph 61 of the witness statement, the 31 July 2017 telephone conversation, the reference to the solicitor's 'whitewash' email, and the without prejudice save as to costs exchange; the claimant's submissions on unambiguous impropriety and section 111A ERA 1996 did not succeed.

The respondent's application therefore succeeded. The witness statement and impact statement were to be redacted as identified in the respondent's skeleton argument, the specified documents were excluded from the merits bundle, and the without prejudice save as to costs correspondence was not to be deployed before the merits tribunal unless and until a remedies hearing took place. No substantive merits findings or award were made in this decision.