In December’s UK Employment Law update, our team take a deeper look at the Employment Appeal Tribunal's (the “EAT”) determination in the Garrod v Riverstone Management discrimination case and explore the scope of “without prejudice” and “unambiguous impropriety”. We also consider how the government’s proposed reforms to the Flexible Working Time Regulations 2014 will affect both employers and employees and take a glance at the upcoming changes to statutory pay in 2023, published by The Department for Work and Pensions.

1. Garrod v Riverstone Management Ltd [2022] EAT 177: in this case, the EAT upheld a decision by Employment Judge Harrington (“EJ”) that:

   1. “without prejudice” discussions that took place during a grievance, and before a claim was issued, were within the scope of without prejudice privilege and could not be adduced as evidence in the subsequent claim because the grievance constituted an existing “dispute”; and
   
   
   2. an allegation that the settlement proposal was made with a discriminatory motive did not mean that the “unambiguous impropriety” exception to the without prejudice rule applied.

   The facts:

   • The Claimant, Ms. Garrod, was employed by Riverstone Management (the “Respondent”) as their Company Secretary. On 30 October 2019, the Claimant submitted a grievance alleging pregnancy and maternity discrimination, harassment and bullying claims against three senior managers.
   • On 8 November 2019, the Respondent’s legal adviser held an initial without prejudice...

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