Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2007/921_06.html
Cite as: [2007] NIIT 921_6, [2007] NIIT 921_06

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 921/06

1144/06

CLAIMANT: Karen McDonald

RESPONDENT: WD Meats Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the respondent's letter of 23 June 2006 is not privileged as a ‘without prejudice' communication.

Constitution of Tribunal:

Chairman (sitting alone): Mrs Smyth

Appearances:

The claimant was represented by Ms A Collins, Solicitor, of Alana Jones, Solicitors.

The respondent was represented by Ms S Bradley, Barrister-at-Law, instructed by Daniel A McKenna & Company, Solicitors.

The issue

The issue for the tribunal is whether the letter dated 23 June 2006 from the respondent is a privileged document on the basis that it is a ‘without prejudice' communication.

The tribunal heard evidence from the claimant, and was provided with a booklet of correspondence between the claimant and the respondent.

The tribunal found the following facts proved on a balance of probabilities:-

The claimant was employed by the respondent as a Personal Assistant in February 1998 to the Managing Director.

In November 2005 the claimant returned from maternity leave. Thereafter the claimant perceived that she was subjected to less favourable treatment on grounds of sex.

On 20 June 2006 the claimant found a letter on her desk from Lisa Boyd, Financial Controller, which referred to an earlier discussion which had taken place on 15 June 2006. The letter stated:-

“Re: Discussion 15/6/6

As per our discussion on 15/6/6 a re-organisation of the office is going to take place to ensure that all positions are covered in as an effective a way as possible. It has been agreed that you should move to cover the receptionist job. The date this re-organisation will start is 24/7/6. Your hours of work shall remain the same 9.00 am – 5.30 pm and your terms and conditions shall remain unchanged.”

On 20 June 2006 the claimant responded to the letter in the following terms:-

“Re: Change of position from PA to Receptionist

Concerning our discussion on 15^th June 2006, I am extremely shocked to have received your note saying that I am to take up the position of Receptionist on 24^th July 2006. At no time did I agree during our discussion to take up the position of Receptionist. What I did say was that I needed time to think about it. As far as I am aware an employer cannot change an employee's terms and conditions without consent and I do not consent to this change.”

The claimant went on sick leave and on 23 June 2006 she wrote a letter of grievance to Lisa Boyd concerning alleged unlawful treatment which she had received since her return from maternity leave in November 2005, including the respondent's decision to change her duties and job title from Personal Assistant to Receptionist.

On 23 June 2006 also, the claimant's legal adviser wrote to the Managing Director of the respondent company in the following terms:-

“WITHOUT PREJUDICE

Dear Sir

Re: Our client: Karen McDonald

We are instructed by our client in relation to her employment with the company. We have advised our client that we are of the view that she has been subjected to unlawful sex discrimination and that she is entitled to pursue claims for sex discrimination and constructive dismissal at Industrial Tribunal. We are instructed that on top of the treatment that our client has received since her return to work following a period of maternity leave, she has now been demoted without her consent, to the post of Receptionist. Our client is minded to refrain from issuing proceedings at this juncture to provide you with the opportunity of offering compensation so that matters can be amicably resolved. We are instructed that a compromise shall only be possible if an adequate offer of compensation is forthcoming within seven days from the date of this letter … .”

The claimant resigned in August 2006.

The law

The parties provided the following authorities which were taken into account:-

BNP Baribas v Mezzotero [2004] UK EAT;

Brunel University, Professor Schwartz v Professor Vaseghi, Ms G Webster [2006] UK EAT.

In addition an excerpt from Harvey on Employment Law was provided.

It is clear that the public policy behind the rule of evidence that ‘without prejudice' communications are privileged from disclosure and inadmissible in evidence is the desirability of encouraging litigants to settle their disputes by agreement, and of ensuring therefore that they can negotiate freely without fear that what is said will be used in evidence.

It is also clear that simply because a document contains the heading ‘without prejudice' does not necessary mean that it will be afforded protection. In order to successfully claim privilege the tribunal must be satisfied:-

(i) that there is an existing dispute between the parties; and

(ii) the ‘without prejudice' communication must be a genuine attempt to settle the dispute.

However, the privilege must not be abused, and cannot be used as a ‘cloak for perjury, blackmail or other “unambiguous impropriety”'.

Conclusions

(5.1) Was there an existing dispute between the parties?

I accept that a letter of grievance cannot in itself support the view that there is an existing dispute between parties. As Mrs Justice Cox pointed out in BNP Baribas, a grievance may be resolved to the claimant's satisfaction once the matter is considered by the respondent. However, in this case it is clear from the respondent's letter of 20 June 2006, coupled with the claimant's written response also dated 20 June 2006 and the grievance letter of 23 June 2006 that there was indeed an existing dispute concerning the change in the claimant's job title and duties from that of Personal Assistant to that of Receptionist. I am therefore satisfied that the first limb of the test is satisfied.

Was the letter headed ‘without prejudice' a genuine attempt to resolve the dispute?

In my view this letter amounts to no more than a letter of claim. The last line states, “we are instructed that a compromise shall only be possible if an adequate offer of compensation is forthcoming within seven days from the date of this letter”. Had the parties taken the next step of putting forward proposals for compensation or other means of resolution of the dispute, then those proposals would have been privileged as ‘without prejudice communications'. However, they did not do so. Since this letter is simply a letter of claim, the claimant cannot rely on the protection of privilege. Accordingly the letter is admissible in evidence.

Chairman:

Date and place of hearing: 30 November 2006, Belfast

Date decision recorded in register and issued to parties: