Without Prejudice Communications

The Court of Appeal has handed down its decision in Brunel University v Webster & Vaseghi, considering issues of waiver of 'without prejudice' status.

The case involved a publication by the employer stating that the employees had demanded unreasonable amounts of compensation in an ongoing discrimination claim. The employees claimed victimisation, asserting they had been subjected to a detriment (i.e. effectively ridiculed) because they had brought a discrimination claim in good faith. The employer sought to argue that the employees could not rely on the without prejudice communications to progress their victimisation claims.

The Court of Appeal held:

• where both parties referred to 'without prejudice' communications in the ET1 and ET3, that was sufficient to waive privilege (para. 41)
• where an employer sets up an impartial enquiry involving a fact-finding exercise as to what happened during a 'without prejudice' meeting, that will also amount to a waiver of privilege (note: the facts were quite unusual - see para. 25)
• the Court of Appeal declined to comment on the correctness of the controversial decision in BNP Paribas v Mezzotero, save to comment that (para .32):

1. o it might sometimes be difficult to prove victimisation if employees are never allowed to rely on 'without prejudice' communications; and,
2. o the BNP Paribas v Mezzotero exception to the sanctity of 'without prejudice' communications should only arise if one of the parties has made it clear at an appropriate stage that it seeks to exclude any reference to 'without prejudice' discussions.

[Thanks to Rohan Pirani of Old Square Chambers, who represented the successful employees, for telling me about this case.]

Brunel University v Webster & Vaseghi