Employment News — 27 January 2014: in dispute? ‘Without prejudice’ settlement negotiations were inadmissible

‘Without prejudice’ communications that are made for the purpose of a genuine attempt to compromise an existing dispute and to avoid litigation cannot, generally speaking, be put before the court as evidence. The idea is to encourage parties to settle their disputes.

After the claimant’s employers had proposed to dismiss him for misconduct, negotiations started between the claimant, his legal advisers and his employers, during the course of which, according to the employers, they accepted the claimant’s suggestion that the dismissal should be structured as a redundancy dismissal. But a few weeks later, after negotiations had broken down, the claimant contended that he had been dismissed as a result of having made protected disclosures and brought a claim of automatically unfair dismissal.

Unusually, it was the employers who were seeking to rely on correspondence, including a draft compromise agreement, which had been exchanged between them on a ‘without prejudice’ basis, as evidence of their version of the facts. The claimant argued that they could not be admitted into evidence…

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