Mrs K Jarvis Respondent 1: Keyloop (UK) Limited Respondent 2: Mr T Kilroy v Respondent — 2025

The claimant had worked for Keyloop since 2003 and was told on 2 January 2024 that she would be replaced as Global Head of Professional Services. On 4 January 2024 she was given two options: a new role as Senior Vice President of the Product Team or an exit package. The tribunal found that the second respondent used the words "without prejudice" and that, by that stage, there was at least a genuine potential dispute about the demotion and possible exit, so the 4 January discussions were covered by the without prejudice rule.

The claimant argued that the without prejudice protection was displaced because the 4 January offer was discriminatory or otherwise victimising. The tribunal rejected that argument. It held that a bare allegation of sex discrimination was not enough to establish unambiguous impropriety, that Mezzotero did not create a broader exception for discrimination allegations, and that no unambiguously discriminatory words or conduct were shown on the material before it. It also rejected the argument that the respondents had waived privilege by pleading the offer in their grounds of resistance.

The tribunal separately considered the March and April 2024 settlement correspondence. It accepted that these were also without prejudice discussions and that the later offer was less generous, but it found that the reduction in the offer was not shown to be unambiguous impropriety or improper behaviour for the purposes of s.111A ERA 1996. It noted that there could be a number of reasons for the change in position and that the claimant had not put forward material sufficient to meet the high threshold for disapplying privilege. Issues 15(c) and 15(d) were therefore struck out under Rule 38(1)(a) on the basis that they had no reasonable prospects of success.