Mrs C Dooley v , solicitor Strathkelvin Instruments Ltd — 2024

At the hearing on 2 February 2024 before Employment Judge A Jones, the tribunal considered only whether the content of a meeting on 16 August 2023 between Mr Dooley and Mr Reid could be relied on in the claimant's constructive dismissal case. The claimant said what was said at that meeting was a last straw. The respondent argued that the discussion was covered by the without prejudice rule and by section 111A of the Employment Rights Act 1996. The tribunal recorded that, at the meeting, Mr Reid said he would not approve the funding options discussed the previous day, said he and his wife would invest £40,000 only on condition that management changed, and said the claimant would have to resign.

The tribunal held that the without prejudice rule did not apply because there was no pre-existing dispute between the claimant and the respondent and no settlement discussion. It found that Mr Reid was acting in his capacity as investor rather than as employer, and that the discussion was not a settlement offer to the claimant. It also held that section 111A did not apply because the exchange was not a pre-termination negotiation between employer and employee.

In the alternative, the tribunal said that if section 111A did apply, subsection (4) would disapply confidentiality because the proposal was not a negotiated settlement offer but an ultimatum in the context of the respondent's financial position. The judgment therefore ruled that the 16 August 2023 meeting content was admissible in evidence. It did not decide whether the claimant had been constructively dismissed and it recorded no monetary award.