Winckworth Sherwood

UK 200 2013 position: 94

‘Without prejudice’ disputes — Portnykh v Nomura International plc

In the recent case of Portnykh v Nomura International plc (UKEAT/0448/13), the Employment Appeal Tribunal (EAT) considered the admissibility of correspondence marked as ‘without prejudice’.

Generally, if correspondence between an employer and an employee is marked as ‘without prejudice’, it is not admissible as evidence in the employment tribunal (ET). However, for this rule to apply, the correspondence must be a genuine attempt to settle a dispute between the parties. Further, ‘without prejudice’ negotiations must not be used as a cover for perjury, blackmail or unambiguous impropriety. 

In this case, Dr Portnykh brought a claim against his former employer on the basis that he had been dismissed as a result of making a protected disclosure. Prior to issuing his claim, Dr Portnykh had entered into settlement negotiations marked ‘without prejudice’ with his former employer. As part of the negotiation process, Dr Portnykh had proposed that the reason for the termination of his employment should be recorded as ‘redundancy’ rather than as a dismissal for misconduct and he sought an increase to the amount of compensation that was offered to him. However, approximately six weeks after entering into settlement discussions, negotiations broke down between the parties…

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