Thursday 31 May 2007

'Without Prejudice' Communications

Much like buses, we hear nothing on this subject for years, and then the Court of Appeal hands down two decision in rapid succession (see earlier bulletin on 28/5/07).

This time, the Court of Appeal shies away from the unworkable BNP Paribas v Mezzotero principle - not, of course, that it says so.

In Framlington Group v Barnetson, the Claimant (a senior executive) was negotiating terms of early departure with his employer. No litigation had been threatened.

The Court of Appeal held, overturning the judge, that the discussions were covered by the 'without prejudice' rule. Whilst not overruling Mezzotero, Auld LJ emphasised the desirability of allowing parties to attempt to settle prospective litigation. He expressly held that there is no special rule applying to employment litigation (para. 31), where early settlement of disputes is as important as in any other area of law.

According to Auld LJ, "the crucial consideration would be whether in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if they could not agree." (para. 34)

Note that the issue as to 'without prejudice' status does remain fact-sensitive. Where there is no real risk of termination (and an employment claim flowing from termination), it is unlikely that communications will fall under the 'without prejudice' banner.

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


An interesting little case in the EAT, worth filing away somewhere, is authority for the proposition that a tribunal should not award loss of earnings in respect of a period after the (successful) Claimant's work permit ran out - even if the Claimant would, in reality, have continued to work for the Respondent. As a matter of law, tribunals cannot award compensation in respect of a period when it would have been illegal for the employee to work.

Aroma v Ang

Friday 18 May 2007

Resignation or Dismissal?

The Court of Appeal has overruled a decision by an employment tribunal (which had been upheld by the EAT), to the effect that at the end 2002 Mr Sandhu had resigned rather than been dismissed from his job with Jan De Rijk Transport.

His unfair dismissal claims had been rejected on the grounds that he simply had not been dismissed but the Court of Appeal has ruled that this was wrong.

On the facts, by agreeing terms for ending his employment, Mr Sandhu had done no more than attempt to "salvage what he could from the inevitable fact that he was going to be dismissed ...... the very antithesis of free, unpressurised negotiation".

In coming to its conclusion that the termination of Mr Sandhu's employment was by dismissal not resignation the Court was critical of the procedures used by the employer saying "Employers of the size of the respondent should not be encouraged to behave as the respondent has done, nor should they think that proper procedures for disciplining or dismissing their employees are unnecessary"

Sandhu v Jan de Rijk Transport Ltd

This is a copy (with permission) of a summary prepared by to whom I [extend my thanks.]

Statutory Grievance Procedure

I have decided to launch a cheekiest legal argument of the year competition. Nominations happily received, but here's a starter...

An employee had trouble writing. The employer, rather than he, made a written note of his grievance for step 1 of the statutory grievance procedure.

The employer then argued that the statutory requirement to "set out the grievance in writing and send...a copy of it to the employer" was not fulfilled, and that therefore the employment tribunal had no power to hear his claims of race and sex discrimination.

Cox J., upholding the tribunal, refused to go along with this legalistic argument and the EAT thus permitted the claim to proceed.

Kennedy Scott Ltd v Francis

Tuesday 15 May 2007

Maternity - what is the 'same job'?

Women who return from maternity leave are normally entitled to return to "the job in which she was employed before her absence". The EAT has handed down the first decision considering what this actually means.

The Claimant was a teacher at a primary school, in which the teachers typically rotated classes every two years. When she commenced maternity leave, she was teaching the reception class. On her return, she was allocated to teach Year 2. She alleged that this was not a return to the same job.

The EAT, upholding the tribunal, held that this was the same job. It was necessary to consider three factors when comparing the 'old' and 'new' jobs; nature, capacity and place - see discussion at paras. 51-54. The Claimant was employed as a primary school teacher, and she returned to work as a primary school teacher. Therefore the statutory requirement was satisfied.

On a minor note, the EAT substituted a finding that the Claimant was subjected to a detriment because she was not consulted over the class which she would be assigned to teach, as she would have been if she had not been absent on maternity leave.

Blundell v St Andrew's Catholic Primary School

Statutory Paternity Leave - Consultation

The DTI has issued a further consultation paper on the implementation of statutory paternity leave and pay, which is intended to be implemented in two years time.

The scheme allows mothers to pass some of their statutory maternity leave (and pay) to fathers if they (the mums) want to return to work during either OML or AML. This is likely to be prove popular with families where the mother earns substantially more than the father.

The government proposes to allow fathers to 'self-certify' that their child's mother is returning to work early and passing maternity entitlements over to them. He will be required to give eight weeks' notice. It is not proposed that the father's employer carry out any checks with the mother's employer, although HM Revenue & Customs will carry out occasional random checks to detect and prevent fraud.

Consultation on the implementation of the scheme closes on 3rd August 2007.

View consultation paper here (large .pdf file - takes about 30 seconds to download on broadband)

Tuesday 8 May 2007

EAT - reopening conceded points

The EAT has a discretion to allow argument on points conceded at employment tribunal level, but will only exercise that discretion if there are exceptionally compelling reasons to do so.

This case is a complicated example of the EAT allowing points conceded at Tribunal to be reopened, in cases concerning large numbers of claims by part timers for the right to join occupational pension schemes in the health service (part of the Preston litigation).

The headnote states that "exceptional circumstances included the fact that the issue went to jurisdiction, these were four test cases representing 120 similar concessions in mass litigation affecting 11,000 NHS employees; the mistake was administrative not tactical, the Respondents applied in each case for a review to the Employment Tribunal, as well as appealing. There had been no first instance full hearing of the Claimants’ cases, the matter being handled according to national protocols, and no further investigation into the facts was required in order to do justice"

Secretary of State for Health & anor v Prance & ors

Thanks to for giving me permission to adopt their summary of this case.

Inducing Breach of Contract

The House of Lords has handed down judgment in three conjoined appeals (one of which was the Michael Douglas v Hello case), dealing with the tort of inducing a breach of contract. This tort is often invoked in restrictive covenant / confidential information cases by old employers in order to impose liability onto the new employer (as well as the departing emplpoyee).

The House of Lords has held that it is an essential prerequisite for establishing the tort of inducing a breach of contract that the alleged wrongdoer specifically intended to interfere with the contract.

The tort is thus one of deliberately, not just carelessly or negligently, inducing such a breach.

Mainstream Properties Ltd v Young

[Thanks to for giving me permission to adopt their summary of this case.]

Failure to perform risk assessment for disabled employees

Does an employer's failure to make an assessment of a disabled employee of itself amount to a failure to make a "reasonable adjustment"? If the answer is no that is an end of the matter but if it is yes, then the employer is in breach of the DDA 1995.

There have been conflicting decisions on the point but the EAT clearly ruled in the case of Tarbuck v Sainsbury’s Supermarkets Ltd in 2006 that the answer is no.

In the present case, an IT manager had become disabled and claimed that his employer had failed to make a reasonable adjustment by not obtaining and consulting on a medical report before dismissing him. It was argued on his behalf that the Tarbuck case had been wrongly decided or alternatively that it could be distinguished. He lost, but given that there are conflicting decisions of the EAT on the point and that it is of some importance, the EAT gave leave to Mr Spence to appeal to the Court of Appeal.

It is understood that the Disability Rights Commission will be seeking to intervene in the appeal to the Court of Appeal, as it is believes this case (and Tarbuck) to be wrongly decided.

Spence v Intype Libra Ltd

Thanks to for giving me permission to adopt their summary of this case.