Genuine settlement talks stay protected, even in a discrimination claim.
“Without prejudiceA legal principle that allows parties to have settlement discussions without those discussions being used against them later in tribunal proceedings. It only applies where there is a genuine dispute a... evidence excluded. Settlement talks stay protected, even in a discrimination claim.”
What you or your employer say during genuine settlement negotiations is protected from later use in a tribunal, even in a discrimination claim, unless it amounts to something as serious as fraud or blackmail.
- Treat without prejudice settlement talks as genuinely off the record. Ordinary refusals or tough positions taken there will not resurface as evidence later.
- If you think your employer's conduct after a settlement, such as a bad or missing reference, has caused you fresh harm, focus on gathering evidence of what happened afterwards, not on what was said during the original negotiation.
- Get advice before assuming anything said in an old settlement discussion can be used to support a new claim. The threshold for that is high, and a specialist can help you work out what evidence you actually have.
The situation
An employee was dismissed and brought tribunal claims for unfair dismissalA legal claim you can bring if your employer dismissed you without a fair reason or without following a fair process. You normally need two years of continuous employment to qualify, though some dismi... and sex discrimination, which were settled in 1996 without any admission of wrongdoing by her employer. During those settlement talks, she asked for a commitment to provide her with a reference, and this was refused. Years later, after struggling to find new work, she brought fresh discrimination and victimisationBeing treated badly because you've raised a complaint, supported someone else's complaint, or done something else the law protects, such as raising a grievance or whistleblowing. It is unlawful in its... claims, alleging her old employer had frustrated her job applications through poor or absent references. She wanted to use the 1996 refusal, said during without prejudice settlement talks, as evidence.
What the tribunal found
The tribunal excluded the evidence from the 1996 negotiations, and the Employment Appeal Tribunal agreed. Settlement discussions are protected by the without prejudice rule so that people can negotiate freely without fear that what they say will be used against them later, and this protection applies in discrimination claims too, not just other types of dispute. The only way round it is the "unambiguous impropriety" exception, which is narrow and only applies in the clearest cases, for example where the privilege is being used to hide fraud or blackmail. The EATStands for Employment Appeal Tribunal. It hears appeals from employment tribunal decisions on points of law, not on the facts. It is not a way of simply asking for a second opinion on the outcome. held that a plain refusal to agree a reference during negotiations did not come close to that standard, even though the employee believed it was motivated by discrimination.
Woodward v Santander UK Plc (formerly Abbey National Plc). UKEAT/0250/09/ZT. Employment Appeal Tribunal. 25 May 2010.