Mr S Mistry v Craig & Rose Limited; Mr B Leseute; and Mr M Beauchamp — 2022

The claimant presented claims of unfair dismissal, direct race discrimination, harassment related to race, and victimisation. This hearing was limited to a preliminary issue about whether a letter dated 5 April 2021, said to contain the protected act for the victimisation claim, could be admitted despite being marked without prejudice save as to costs. The respondent withdrew its application for deposit orders, so the only issue for determination was admissibility and, if the letter remained inadmissible, whether the victimisation claim should be struck out.

Employment Judge Dobbie held that the letter was genuinely without prejudice and that the privilege had not been waived. The judge reviewed the authorities on the unambiguous impropriety exception, including Unilever, Hytera, Ferster, Fincken, Swiss Re and Woodward, and concluded that the claimant had not shown any unambiguous impropriety that would justify lifting the privilege. The tribunal noted that the claimant was seeking to rely on his own without prejudice communication, and that the respondent's reply was sent openly between solicitors.

The judge found that there was nothing in the respondent's reply amounting to perjury, blackmail, or another abuse of a privileged occasion. The correspondence was treated as a legitimate fair warning in the context of threatened litigation, and the judge said there was no principled basis to extend the exception so as to admit the claimant's protected act. Because the protected act could not be admitted, the victimisation claim could not proceed and was struck out under Rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013 for having no reasonable prospects of success.

The respondent also sought costs of £2,250, but the tribunal did not hear that application at the hearing. Instead, the judge directed that any costs application should be made in writing, with a written response from the claimant, and noted that the matter would then be decided on paper or listed for hearing if necessary.