In the case of Martin v McDevitt and Community Legal Services CIC the Employment Appeal Tribunal [“EAT”] considered when the cloak of legal privilege which keeps without prejudice negotiations ‘off the record’ can be removed and the ‘unambiguous impropriety’ exception may be applied.

The Claimant was a Legal Assistant with Community Legal Services CIC. He was dismissed and brought a number of claims including disability discrimination. In an attempt to settle the dispute via without prejudice negotiations, he engaged with the Respondents via ACAS. On 20 November 2015 ACAS sent Mr McDevitt an email from Mr Martin which said they would ‘ensure that the local political establishment, local employers and the public are made aware of our opinion that [Mr McDevitt] is attempting to grossly abuse the protection afforded within the Equality Act, to enrich himself based on a claim that has no basis whatsoever’.

Although this email of 20 November 2015 was expressed to be ‘without prejudice’ Mr McDevitt later sought to rely on it to support a claim for victimisation against Mr Martin. As the statement had been made during without prejudice negotiations, the question arose as to whether the email was properly ‘without prejudice’ (rendering it inadmissible in evidence as a genuine attempt to settle a dispute) or whether it amounted to ‘unambiguous impropriety’ (this would have effectively disapplied the ‘without prejudice’ principle allowing Mr McDevitt to refer to this email in his evidence).

The question of whether this email from November 2015 actually constituted ‘unambiguous impropriety’ has been remitted for a further hearing in the Employment Tribunal (one to watch for later this year). Nonetheless, the decision of the Employment Appeal Tribunal contains helpful pointers about what an Employment Tribunal may or may, henceforth, find to be acceptable and whether it may deem such communications expressed in without prejudice negotiations to be privileged in nature or open to be taken into account during the decision making process.

In the judgement, the EAT held that it was acceptable in the context of a without prejudice negotiation for a communication to ensure the Claimant is aware:
• that the Employment Tribunal hearing is in public and that the press may be there;
• that the press may be notified that the case is to be heard; and
• that the Respondent intends to take the position that the claims are spurious

On the other hand, it was the EAT’s view that it may not have been acceptable for the Respondent to threaten to take steps to affect Mr McDevitt’s future employment chances or his fledgling political career in the context of a without prejudice negotiation (in effect, a Respondent that does so risks their communications are not cloaked by legal privilege and are, therefore, ‘on the record’).

The reality is that during the course of a without prejudice negotiation there will often be communication in the background as the parties endeavour to avoid the time and cost associated with litigation. An employer should bear in mind that any correspondence prepared by them or their legal representatives might end up being scrutinised by an Employment Judge in the event of a dispute about whether it is admissible in evidence under the unambiguous impropriety rule (even if they intended it to be ‘off the record’). Worse still, as in this case, such communication might itself form the basis of a legal claim if it is found by the Employment Tribunal to amount to unambiguous impropriety.

Ultimately, therefore, even if correspondence is expressed to be ‘off the record’ and is expressed in the context of a without prejudice negotiation, applying the ‘without prejudice’ label may not be sufficient to ensure it may not be brought to the attention of the Employment Tribunal.