Where, as was usual, a grievance meeting consisted of an internal discussion about the grievance, the fact that previous "without prejudice" negotiations were mentioned would not entail waiver of privilege in respect of those negotiations. However, in the unusual circumstances of the instant case, where the grievance proceedings had in effect been a trial of the relevant issues by an independent panel and where both parties had given or called evidence of the previous negotiations, privilege had been bilaterally waived.
The appellant university (B) appealed against a decision of the Employment Appeal Tribunal to uphold a preliminary ruling of the employment tribunal that evidence of "without prejudice" discussions that had taken place with the respondent employees (V) was admissible in V's victimisation claims. V cross appealed on the issue of privilege. The without prejudice discussions had taken place in connection with claims of race discrimination which V had earlier brought against B. After those claims had been brought, B issued a newsletter in which it stated that it would defend its reputation against unfounded allegations of discrimination, "especially when they are accompanied by unwarranted demands for money". Having formed the view that the passage in question referred to them and that it amounted to victimisation, V lodged grievances. B appointed a panel comprising members of its council to determine the grievances. After hearing evidence of the settlement discussions that had taken place in connection with the claims of race discrimination, the panel recommended that the grievances be dismissed. V issued proceedings in the employment tribunal and referred in their statements to what had been said during the settlement discussions. B filed responses, which included references to the grievance hearings and had attached to them copies of the grievance panel's report. The employment tribunal and the EAT ruled that B had waived privilege at the grievance hearings in respect of the without prejudice discussions. B argued that the employment tribunal and the EAT had been wrong to so rule. V argued that, even if B had not waived privilege by its conduct of the grievance hearings, it had done so when, in response to the victimisation claim, it had relied on the grievance proceedings and appended the panel's report to its responses.
HELD: (1) The EAT had been justified in concluding that there had been a bilateral waiver of privilege in respect of the without prejudice negotiations. In most cases, where a grievance meeting took place in the usual way, internally, there would be no question of waiver if the parties mentioned matters covered by the without prejudice privilege. But in the particular and unusual circumstances of the instant case, where the grievance proceedings had in effect been a trial of the victimisation issues by an independent panel and where both parties had given or called evidence of the previous negotiations, privilege had been bilaterally waived. (2) By referring to the without prejudice discussions in their ET1s and witness statements, V had made it plain that they intended, unless prevented, to waive privilege. By pleading its responses as it had and by attaching the grievance panel's report to the ET3s, B had made it plain that it too had intended to waive privilege. Had B applied to amend its pleading shortly after filing it, the application might have had a good chance of success. However, where, as in the instant proceedings, an application to amend had not yet even been made and where the application to withdraw references to the without prejudice discussions would have a radical effect on those proceedings, it was far too late for B to retrieve the position.
Appeal dismissed, cross-appeal allowed
For the appellants: Andrew Stafford QC
For the respondents: Rohan Pirani