Employment – 'Without Prejudice' Privilege – Victimisation

By: Rosanna Cooper
Submitted: 2007-01-17 16:23:42
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In the case of Vaseghi and another v. Brunel University and another [2006], the employees made separate complaints of race discrimination and claimed compensation against their employer. Settlement discussions began before an initial set of tribunal hearings in 2004, however, no settlement was reached.

Following the initial hearings, the employer released a quarterly newsletter which outlined that it was spending a large amount of money on defending employment claims. It made particular reference to two tribunal hearings which had cost in excess of ?60,000. It also criticised employees and the trade union for pursuing unfounded allegations and making unwarranted demands for money. The two employees lodged grievances in response to the newsletter. They claimed the following:

* The employer had initiated the attempts at settlement;

* The employer had raised the prospect of financial settlement; and

* The newsletter had amounted to victimisation.

The grievance committee heard oral evidence on the discussions between the parties in their attempts to reach a settlement, however, it was decided that the grounds for the grievance had not been established. The employees then began new tribunal proceedings.

At the new hearings the employer challenged the admissibility of the evidence relied upon before the grievance committee by the employees. The employer argued that the evidence concerning the settlement discussions were protected by ‘without prejudice’ privilege. The tribunal concluded in favour of the employer, and held that the evidence should have been inadmissible. It should be noted however that the tribunal also held that the references to the discussions in the grievance committee’s report would be admissible. If they were not, the case for the employees would be prejudiced. The employer appealed and the employees cross appealed.

The employer submitted that the references to the discussions in the grievance committee’s report should have benefited from the ‘without prejudice’ privilege. They argued that the privilege was of more importance than the due administration of justice in relation to putting the case of the employees under severe prejudice.

The employees submitted that they should be allowed to use the references to the discussions in the grievance committee’s report, as that was the only evidence of what happened in the settlement discussions in support of their victimisation claims. They claimed that the allegations of unwarranted demands for money were not supported by what had occurred in the settlement discussions. Therefore, they argued that they should have been able to rely on the settlement discussions, despite them technically being subject to the ‘without prejudice’ privilege, because there was an overriding public interest in eradicating the evils of victimisation. If they could not rely on the evidence they would not be able to present their case for victimisation.

The employment appeal tribunal held that the employees claims would have been too severely hampered were they not permitted to rely on the settlement discussions as evidence against the allegations that they had not made unwarranted demands for money. The employer, through the publication of the newsletter had brought the matter into the public domain, and subsequently could not rely on the ‘without prejudice’ privilege. To prevent the employees from relying on the evidence in support of their victimisation claims would have been a clear abuse of a privileged occasion. The eradication of discrimination and victimisation was deemed more important than the protection of the ‘without prejudice’ privilege. Therefore the appeal was dismissed and the cross appeal allowed.

© RT COOPERS, 2006. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

Article source: Expert Articles