ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4102668/2019 Employment Judge: M A Macleod Michael Ehidiamen v J.P. Morgan Bank Luxembourg S.A. — 2019

This was a preliminary hearing, not a merits judgment. The claimant applied to strike out the respondent's ET3 and also sought to rely on a recording/transcript of a 9 January 2019 meeting and on correspondence said to be without prejudice. The respondent opposed strike out, said the ET3 had been timeously and properly lodged, and maintained that the settlement communications were privileged.

The tribunal refused the strike-out application. It held that the respondent had filed a valid ET3 within the statutory deadline, that a holding response can be competent while investigations are ongoing, and that the claimant's allegations of destruction of evidence, misleading the tribunal, and other impropriety were strongly disputed and could not be resolved without hearing evidence. The tribunal also rejected the argument that requests for further and better particulars, or the existence of ongoing investigations, justified exclusion of the respondent from the proceedings.

On privilege, the tribunal admitted the transcript and recording of the 9 January 2019 meeting. It accepted that, if the claimant's allegation that the meeting involved a threat or reference to a "gagging clause" were proved, the material could fall within the unambiguous impropriety exception, so it should be admitted to proof. By contrast, the emails of 14 February and 11 March 2019 to ACAS, and the 24 May 2019 email from DAC Beachcroft LLP, were treated as ordinary settlement communications and held inadmissible under the without prejudice rule.