In person For the v Respondent — 2020

At an open preliminary hearing on 24 August 2020, Employment Judge Hyams considered only whether the claimant could rely on communications and conduct that occurred during settlement negotiations when seeking to amend her claim. The respondents' strike-out application had originally been listed but was not pressed. The judgment therefore did not decide the merits of the underlying unfair dismissal, discrimination, breach of contract, or wages complaints.

The tribunal applied the without prejudice privilege principles discussed in Savings & Investment Bank Ltd (In Liquidation) v Fincken and Portnykh v Nomura International plc, focusing on the narrow exception for unambiguous impropriety. It held that the claimant had not shown conduct serious enough to displace the privilege. The judge considered the claimant's allegations about threats to sue for defamation, pressure to agree to a settlement containing a gagging clause, deadlines to obtain legal advice, and alleged threats amounting to blackmail, but found that none of those matters met the required threshold.

The judgment also rejected reliance on the claimant's own vulnerabilities, ACAS guidance, and the claimed effect of the negotiations on her wellbeing or career. The judge said that a threat to sue for defamation, even if unwarranted, was not enough on the facts found here, and that allegations relating to possible perjury did not amount to unambiguous impropriety. The conclusion was that the material arising during the unsuccessful settlement negotiations remained covered by without prejudice privilege and could not be used for the proposed amendments.