‘Without prejudice’ is without meaning: Shortly after returning to work from maternity leave, Mezzotero raised a grievance complaining, among other things, that she had been prevented from returning to her old job. She was subsequently called to a meeting by her managers, who said they wanted to talk to her on a ‘without prejudice’ basis. They suggested that she terminate her job by mutual agreement on the bank’s standard redundancy terms, including a payment of approximately £100,000, collect her belongings, leave and seek legal advice.
Mezzotero complained to an employment tribunal, and referred to the ‘without prejudice’ meeting. The bank’s IT3 claimed that those discussions were subject to legal privilege, and therefore could not be disclosed as evidence. At a Directions Hearing, the chairman decided that it would be an abuse of the without prejudice rule to exclude evidence of the meeting from the proceedings. The bank appealed.
The EAT was satisfied that raising a grievance did not mean the parties to an employment relationship are necessarily in dispute.
The EAT said it was unrealistic to refer to the parties as expressly agreeing at the meeting to speak without prejudice, given the unequal relationship of the parties, the vulnerable position of the employee, and that the suggestion was only made by the employer once the meeting had begun.
Further, the employer’s conduct would fall within the concept of unambiguous impropriety, and would amount to an exception to the ‘without prejudice’ rule.