BNP Paribas v Mezzotero
Settling disputes is usually in everyone’s interest. The “without prejudice” rule is there to help. It is a rule, which makes inadmissible any evidence of communications made in negotiations held with the intention of trying to settle existing negotiations. The policy behind the rule is the obvious point that the parties should not fear that anything they say in the negotiations would be used against them if the discussions fail to resolve the dispute. There are two important requirements for the rule to apply. First, when the negotiations begin, there has to be an existing dispute to resolve. Secondly the rule will not be allowed to cover up perjury, blackmail or other “unambiguous impropriety”. The first of these rules often catches out incautious employers who initiate discussions intending them to be without prejudice before a dispute has arisen. This will not work as was made very clear in the discrimination case of BNP Paribas v Mezzotero  IRLR 508.
It was the other exception, about the meaning of unambiguous impropriety, which was the subject the decision of the Employment Appeal Tribunal (EAT) in Woodward v Santander UK PLC  UKEAT/0250/09. The claimant wanted to rely on evidence that her former employers had flatly refused to offer her a reference. She put evidence of that refusal in her witness statement even though the statement had been made in a without prejudice meeting attended by her solicitor. In argument she relied on some hints in Mezzotero that in discrimination cases, because of the need to combat the “very great evil” of such conduct, the bar should be lowered.
In that case the judge indicated that a suggestion that an employee leave and be made redundant after she had raised a grievance about her treatment after returning from maternity leave was within the exception. The decision left many wondering whether the without prejudice rule was being eroded in discrimination cases.
The emphatic answer to this question appears to be “no”. In its decision in Woodard the EAT stressed the importance of the policy behind the rule and that the exception should only be allowed in the very clearest of cases. There should, it decided, be no special rule for discrimination cases.
Accordingly the claimant lost her argument and the evidence was excluded. “Unambiguous” really does now appear to mean something and if this decision represents the current judicial view employers should be relieved.
First published in The Grapevine Magazine
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