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EMPLOYERS received some much needed reassurance, in relation to the sanctity of ‘without prejudice’ communications, with the recent decision of the Employment Appeal Tribunal in Brodie v Nicola Ward, where it was held that an employee was not entitled to disclose the contents of a ‘without prejudice’ letter to support a constructive dismissal claim, even where the letter was relied upon by the employee to prove their case.

The without prejudice letter was from the employer’s solicitors proposing a settlement of a sick pay claim on terms that it would be fully satisfied in return for the employee’s resignation. The employee resigned and sought to rely on this letter as the ‘last straw’ in her claim for constructive dismissal. The employer claimed that the letter was privileged under the ‘without prejudice’ rule and should be excluded from proceedings.

To engage the ‘without prejudice’ rule, the communications must be a genuine attempt to resolve a dispute. Once engaged, the rule preserves the public policy principle that parties should be able to negotiate openly without fear of their words being used against them in open court.

This article is an excerpt from a full article in Elborne Mitchell’s Memo 2008-35, by Samantha Strong.

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