In person For the v Respondent — 2020

This was a preliminary hearing to decide whether part of a 17 June 2019 conversation between Mr G Seers and Mr Darren Hill, Managing Director of Metroline Limited, could be admitted at a later full merits hearing. It was common ground that s.111A ERA 1996 did not apply because of subsection (3), so the respondent relied on the common law without prejudice rule. The issues were whether there was a dispute by the time of the conversation, whether the relevant discussion was a without prejudice discussion about potential settlement, and whether there was unambiguous impropriety which removed protection.

The tribunal found that by 17 June 2019 there was a dispute between the parties. It relied on the agreed chronology and evidence including the claimant's criticism of management, concerns about the employment relationship, the respondent's referral to occupational health, the claimant's acceptance that there was no trust between himself and senior management, and references during the meeting to tribunal proceedings, a strong case, whistleblowing and constructive dismissal. The tribunal concluded that litigation was in contemplation, or at least that the situation had potential to result in litigation if not resolved by agreement.

The tribunal accepted that the conversation about a settlement agreement and a formal meeting concerning whether the relationship had broken down was, on its face, without prejudice. It treated the contemporaneous handwritten notes as the safest source of what was said, with a limited deletion where it considered words about termination may have been added. It did not accept that the typed notes were merely a grammatically corrected version of the handwritten notes, but found no bad intent in the changes.

The tribunal held that there was no unambiguous impropriety sufficient to remove without prejudice protection. It found that the alternatives put to the claimant were a settlement agreement or a formal meeting to decide whether the employment relationship had irretrievably broken down, and that any dismissal would be because the relationship could not be repaired rather than misconduct. Even taking the claimant's case at its highest, the tribunal held that the alleged threat fell well short of the unambiguous impropriety test. It also rejected the claimant's argument that the respondent's later evidence about without prejudice protection itself amounted to unambiguous impropriety. The judgment ordered that the protected part of the conversation and records of it be excluded or redacted for the full merits hearing.