At the end of last year, in the Employment Appeal Tribunal (EAT) case of Garrod v Riverstone Management Ltd, the EAT upheld an employment judge’s decision that an employee’s grievance alleging bullying, harassment and maternity discrimination constituted an existing dispute for the purposes of the without prejudice rule. As a result, the employee was unable to refer to a settlement offer made during the grievance process in her legal claim. This blog explores the implications of this case in more detail.

The without prejudice rule

The without prejudice rule is aimed at preventing statements made in a genuine attempt to settle an existing dispute coming before a tribunal as evidence. Importantly, for the rule to apply, there must be a dispute at the time the without prejudice statements are made. This does not mean litigation has to have been threatened, but the parties must have contemplated, or might reasonably have contemplated, litigation if terms could not be agreed. When without prejudice privilege applies, it gives a party an absolute right to withhold a document from disclosure.

Last year we published a blog on Without Prejudice: when it will (and will not) apply, outlining the exceptions to the rule. This blog discussed the judgement in Swiss Re Corporate Solutions Ltd v Sommer, in which the judge found that there remained a strong rule of public policy for maintaining privilege for without prejudice correspondence. The recent decision of Garrod confirms that...

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