UK: ‘with out prejudice’ safety could apply to exit discussions in response to a grievance

The EAT ruling in Garrod v Riverstone Administration Ltd offers welcome reassurance that an employer can provoke ‘with out prejudice’ discussions providing a attainable consensual termination the place an worker has raised a grievance clearly indicating potential authorized claims.

‘With out prejudice’ safety can solely apply to communications that are a real try to settle an ‘current dispute’.  It had been instructed that the sooner case of Mezzoterro established a rule of legislation {that a} grievance by itself can not quantity to an ‘current dispute’.  The EAT in Garrod clearly rejected this competition.  It clarified {that a} grievance can be proof of a dispute, though it won’t at all times be – this may rely on the information.

In Garrod, the worker’s grievance was that she had been discriminated towards for plenty of years together with after her return from maternity go away, and in discussing her grievance she had clearly referred to alleged infringement of authorized rights and the opportunity of going to Acas for Early Conciliation.  Significantly as the worker was legally skilled, it was cheap for the tribunal to conclude that these had been clear and real signposts to the opportunity of litigation if the grievance couldn’t be resolved.  Due to this fact there was an ‘current dispute’ on the time of the termination discussions and this was the identical dispute as grew to become the topic of the declare.

The grievance in Mezzoterro additionally involved alleged discrimination in remedy following return from maternity go away, however the declare made was that the employer’s proposal to terminate the employment was itself illegal intercourse discrimination and victimisation.  The EAT there held that it was open to the tribunal on the information to conclude that no dispute had arisen previous to the termination proposal.  In distinction, the worker in Garrod was not claiming that the employer’s proposal was itself an illegal act;  the alleged information forming the declare had clearly been included within the grievance raised earlier than the proposal was made. Reasonably the worker appeared to need to check with the termination proposal to counsel that the employer thought it had a weak defence to the claims made within the grievance.

The EAT went on to think about the exception to ‘with out prejudice’ safety the place there was perjury, blackmail or different ‘unambiguous impropriety’.  It rejected the worker’s argument that it was unambiguous impropriety to inform her she had no future on the firm when she had indicated she needed to remain.  This case was very completely different from the information in Mezzoterro, the place the allegedly illegal conduct that based the tribunal case was mentioned to have occurred on the allegedly privileged assembly such that, if the proof couldn’t be admitted, the declare couldn’t be pursued.  The exception will solely apply in “the very clearest of circumstances” or “actually distinctive and needy circumstances”, and the tribunal was entitled to search out that this was not the case in Garrod.  Making a settlement supply which may, on one view, counsel that the employer held discriminatory attitudes fell far under the edge for the exception to use.

Though the ruling is useful in clarifying the scope of Mezzoterro, employers shouldn’t assume that each grievance will robotically quantity to a dispute: not each grievance will so clearly point out the potential authorized claims.  There additionally stays a danger that an worker claims that the termination supply or what occurred within the assembly was itself discriminatory and this prevents the employer from counting on the ‘with out prejudice’ safety. Employers ought to due to this fact proceed to rigorously contemplate when and find out how to provoke with out prejudice settlement conversations and what to say, given the chance that this might later be admissible in tribunal.

Anna Henderson

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