Without prejudice—reference to legal rights, Acas and Early Conciliation are clear signposts to dispute (Garrod v Riverstones Management Ltd)

References by an employee to infringements of legal rights and to Acas and to Early Conciliation (a statutory element of the employment tribunal process) are clear signposts to the possibility of litigation and therefore that there is a ‘dispute’ for the purpose of determining whether the without prejudice rule applies. In addition, the fact that the employee was legally trained was a reasonable basis on which an employment judge could conclude that those apparent signposts were genuine, according to the EAT.

Garrod v Riverstones Management Ltd [2022] EAT 177

What are the practical implications of this judgment?

This judgment contains a rare discussion of the meaning of ‘dispute’ within the without prejudice rule and the threshold of the ‘unambiguous impropriety’ exception as in the Mezzotero case. In particular, practitioners should note from this judgment that:

• when considering whether there is a ‘dispute’ for these purposes, references by an employee to infringements of legal rights, to Acas and to Early Conciliation (a statutory element of the employment tribunal process) are clear signposts to the possibility of litigation and therefore that there is a ‘dispute’
• the fact that an employee is legally trained is a reasonable basis on which an employment judge could conclude that those apparent signposts were genuine signposts, i.e. that they meant what they said
• making a settlement offer which could, on one view, provide a clue to a party’s discriminatory attitudes falls far below the threshold necessary to demonstrate the very clear and very serious wrongdoing necessary for the ‘unambiguous impropriety’ exception to apply to displace the without prejudice rule
• Mezzotero was distinguishable because that was in reality a very different case, where the allegedly ‘without prejudice’ communications were also the alleged unlawful acts on which the claim was based.

Case details

• Court: Employment Appeal Tribunal
• Judge: The Honourable Mr Justice Bourne
• Date of judgment: 9 December 2022

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