Issue 91 - June 2007

Without Prejudice Communications
In our May Early Bird Workshop, the team reported on the issues surrounding "without prejudice" discussions. Since then, the Courts have handed down two further decisions on the issue of "without prejudice" communications. If you were unable to attend the Early Bird Workshop in Norwich on 24 May, don't worry - there are two further workshops taking place in Ipswich on Tuesday 12th June and Wednesday 13th June.

The Court of Appeal has handed down its decision in Brunel University v Webster and Vaseghi, which considers issues of waiver of "without prejudice" status.

This case revolved around a newsletter by the Vice-Chancellor of the University stating that two employees had demanded unreasonable amounts of compensation in an on-going discrimination claim. Both of the employees submitted grievances stating that the Vice-Chancellor's statement amounted to victimisation, and contended that it was the University that had first made the suggestion of a monetary settlement. The University's grievance panel heard evidence about the settlement discussions, and concluded that both employees had turned down the offers of settlement in the hope of obtaining greater financial rewards. Therefore, the panel rejected the employees' grievances.

The employees consequently issued victimisation claims in the Tribunal. The University's Response Form (ET3) attached a copy of the grievance panel's report. During the proceedings, the University's solicitors objected to witness statements from both the employees describing the settlement discussions that had taken place being heard on the basis that the discussions had been "without prejudice".

The Court of Appeal held that where both parties had referred to "without prejudice" communications in the ET1 and ET3, then that was sufficient to waive that "without prejudice" status. Further, the Court decided that 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 without prejudice status. The witness statements could therefore be presented as evidence before the Tribunal.

Employers must be aware that the protection given to without prejudice discussions is not absolute. If the Tribunal/Court believes that it is in the public interest (in permitting discrimination claims to go ahead on all available evidence) any without prejudice conversation can form a part of that evidence.

In Framlington Group v Barnetson the Claimant had been negotiating terms of an early departure with his employer. No litigation had been threatened by either party. However, the Court of Appeal held that the termination discussions were covered by the "without prejudice" rule because both parties were clearly aware of the potential for litigation if the dispute over the Claimant's leaving terms could not be settled. At first sight this might appear to be a relaxation of the rules on without prejudice discussions. Nevertheless it is important to remember that whether something is "without prejudice" will quite often turn on the facts of the case.

Dismissal or Resignation?
The Court of Appeal in Sandu v Jan de Rijk Transport Limited considered whether an employee resigned or was dismissed when he entered into a severance agreement during a meeting at which he was told he was going to be dismissed. Mr Sandu had been called to a meeting where he had been told by his Dutch boss "your contract, we are going to finish it"! The Court decided that Mr Sandu had been dismissed.

The Court gave some useful guidance to employers on seeking to negotiate a termination by mutual agreement and wishing to avoid a tribunal finding that the employee was dismissed. The employer should ensure that there is some form of negotiation and discussion leading to a result which is a genuine choice on the part of the employee. This should include:

• giving the employee warning of why the employer wants a meeting;
• giving the employee the opportunity to take legal advice;
• giving the employee time to reflect; and
• avoiding a severance agreement that is not particularly favourable to the employee.

Clearly, the statutory dispute resolution procedures should always be considered before an employee is invited to this kind of meeting to avoid the dismissal being automatically unfair.

Statutory Grievance Procedure: what is a grievance?
In Kennedy Scott Limited v Francis the Employment Appeal Tribunal upheld a Tribunal decision that a note made by an employee's manager during a meeting and which contained "various details of complaints at which could, at least in places, reasonably be expected to raise with any employer reading them, concerns about allegations of discrimination" was a written statement of grievance under step 1 of the standard grievance procedure.

Once again, this decision highlights how low the threshold is that employees need to cross to able to lodge a grievance under the statutory grievance procedure. It would appear that step 1 of the grievance procedure does not even require the employee to physically write the statement that is submitted to the employer.

Return to "same job" after maternity leave?
The Employment Appeal Tribunal in Blundell v Governing Body of St Andrews Catholic Primary School considered the scope of an employee's right to return from maternity leave to a "job in which she was employed before her absence". The EAT determined that the purpose of the legislation was to "provide that the returnee comes back to a work situation as near as possible to that which she left". However, where the employee's role is variable, the Tribunal may have regard to the normal range within which variation has previously occurred. In the case of Blundell, the EAT held that the Claimant (a teacher) could not insist on coming back to teach her same class, since the school required teachers, in any event, to change classes every 2 years. But, the EAT did decide that the head teacher's failure to ask the Claimant which class she would like to teach in the new school year (where teachers who were not on maternity leave were asked) was discrimination under the Sex Discrimination Act 1975 and amounted to detriment.

It goes without saying, that employers must not forget about employees on maternity leave as in this case where the head teacher simply forgot to speak to the Claimant and ask her which class she would like to teach the following term.

Quickfire!

• The Breast Feeding Manifesto Coalition including trade unions, Medical Royal Colleges and charities are lobbying the Government to allow mothers to breast feed in public. The Confederation of British Industry is opposed to the breaks as no doubt many employers will be. We can only wait to see if this develops into new legislation.
• The Children's Minister, Beverly Hughes, has suggested that all workers in the UK should be given the opportunity to work flexibly, either part time, on flexi time, from home or as part of a job share unless there is a sound business case for them not to do so. The CBI has responded by stating that 90% of requests for flexible working are already granted by employers and in any event from April 2007 the right was extended to adult carers.
• A media sales manager described as "a wee poof", "a cream puff" and "psychologically unbalanced" has won almost £120,000 for discrimination on the grounds of his sexual orientation. The award included £10,000 for injury to feelings and almost £80,000 for loss of earnings. Interest was added and also a sum of almost £25,000 for the company's failure to follow statutory procedures.
• The NHS has published details of its website to prepare employers for the new smoke free law on 1 July 2007. Visit www.smokefreeengland.co.uk or call the Smoke Free England Information Line on 08001691697.

If you have any questions about this, or any other employment law related matter, please be in touch with any member of the team. Also, if you think that you should have received an invitation to our Early Bird seminar recently, but did not, please let us know.

The content of this document is for general information only. As always, specific professional advice should be taken on each individual matter © Birketts Solicitors 2007. Birketts LLP is constituted as a limited liability partnership in accordance with the Limited Liability Partnerships Act 2000. Where we refer to a 'partner' of Birketts LLP, whether in this brochure or in any other correspondence or communication with you, the term 'partner' means a member of Birketts LLP, and shall not be construed as indicating that the members of Birketts LLP are carrying on business in partnership within the meaning of the Partnership Act 1890.

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