Legal opinion: Victimisation arising from settlement discussions

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When a claimant who had brought a race discrimination claim saw an email – which commented on her capabilities – sent from her employer via Acas during settlement conciliation, she ultimately won a case of victimisation. And while the case of Vernon v London Borough of Hammersmith and Fulham provides some guidance about how best to correspond with unrepresented claimants, this verdict could encourage greater caution by employers when dealing with the conciliation service. Sarah Tahamtani, employment partner at Clarion solicitors, looks at the case.

Settlement discussions

The case illustrates how settlement discussions can end up in front of an employment judge. If it is not successfully appealed or disapproved by subsequent cases (it is only a decision from an employment tribunal, not the Employment Appeal Tribunal or a higher court), it should act as a warning to employers and their representatives when conducting settlement negotiations.

Hammersmith and Fulham’s solicitor had sent an email to the Acas conciliator as part of the settlement negotiations, saying that the employer would not be putting forward any offers and had a strong case. The email also declared that the solicitor was confident the employer would be able to show a fair recruitment procedure was followed and the best candidate was appointed.

Settlement email went beyond setting out the defence

However, the email also pointed out that the claimant was told that her report writing was an issue and her tribunal claim form contained basic spelling and grammatical errors, adding: “This we believe in itself demonstrates that the claimant is not capable of the promoted role of principal social worker”. The email also stated that the selection criteria for the role included the ability to write coherent, comprehensive and accurate records, court statements and reports.

Unfortunately, the solicitor agreed that this email could be forwarded to the claimant, who was still employed by Hammersmith and Fulham council at this time and was unrepresented. According to the tribunal, the email had a “profound effect” on the claimant and she found it deeply upsetting.

The tribunal’s main issue with the email was that it made two inaccurate points, and went further than both the employer’s defence and the evidence it gave in the tribunal. In particular the email implied that the claimant was not capable of being promoted now or in the future, which was not what the employer’s witnesses said at the tribunal hearing. The tribunal found that these inaccurate statements put improper pressure on the claimant to withdraw her claim.

Impropriety?

Normally, discussions with Acas, or any discussions that are “without prejudice”, cannot be referred to or relied on in tribunal proceedings. However, there is an exception if there is “unambiguous impropriety”. This means that you cannot say a discussion or a document is “without prejudice” to try to hide discrimination or blackmail or to try and threaten the claimant into settlement.

While it is regrettable that the email caused the claimant distress, this does not necessarily mean that improper pressure was placed on the claimant. Parties should be free to engage in genuine settlement negotiations without the fear of this being brought up in tribunal hearings. It is arguable that this case has gone too far. The email was perhaps not sufficiently thought out, but does not seem to have reached the threshold of unambiguous impropriety or improper pressure. The tribunal said that the email “could only mean” that the claimant “was never going to be promoted thereafter”. However, this seems an unduly negative reading of the email.

Unless and until this case is appealed or disapproved, employers and their representatives will have to be more cautious in settlement discussions than previously.

From an employer’s perspective, if in doubt, you should tone down emails and letters, do not give permission for Acas to forward your emails to claimants and ensure that any emails are factually correct. Be especially careful if claimants are still employed and avoid making any statements that could affect their future employment or be seen to be subjecting them to a detriment because they have brought a claim.

Acas provides an invaluable service, especially in assisting with negotiations with unrepresented claimants. I would hope, therefore, that this case doesn’t put off claimants and respondents from using Acas or from engaging in without prejudice discussions.

Sarah Tahamtani is employment partner at Clarion Solicitors

For a summary of Vernon v London Borough of Hammersmith and Fulham and other recent employment tribunal decisions, see XpertHR.

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