Legal Updates

Employment Law – ‘Without Prejudice’ Letter – Admissibility of Evidence – Unfair Constructive Dismissal – ‘Last Straw’ – Sick Pay

The case of Brodie v Nicola Ward (Trading as First Steps Nursery) [2008] involved an employee who had resigned following the receipt of a 'without prejudice' letter from the employer's solicitors offering to settle separate proceedings relating to sick pay in return for her resignation. The employee in this case had been continuously employed as a teacher, as well as deputy head of the respondent's day nursery, for nearly ten years.

The employer acquired the nursery in 2000. By a claim form dated the 11th of May 2007, the employee brought a complaint of unfair constructive dismissal. She argued that in the autumn of 2006, she had been wrongfully denied contractual sick pay, that claim being subject to separate tribunal proceedings. She had resigned when solicitors acting for the employer had written to her on the 25th of January 2007 proposing a settlement of the sick pay claim. The claim would be settled if the employee resigned.

That proposal of her resignation was described by the employee as the 'last straw'. The employer resisted the claim and denied repudiating the employee's contract of employment. The employer also denied that the employee had resigned in response to any breach which might have been established.

However, the employer admitted that the solicitors' letter, which was marked 'without prejudice', had been sent and argued that it was protected by privilege.

The employment tribunal came to the conclusion that the letter was privileged under the 'without prejudice rule'. This meant that the letter was inadmissible as it did not fall within any of the exceptions to the privilege.

The employee appealed against the decision. She submitted that while the contents of the letter were privileged, it was arguable that it fell within either the dishonesty or unambiguous impropriety exceptions to the privilege. In such circumstances, the contents of the letter should have been admitted in evidence.

The appeal was dismissed.

It was decided that in this case, the contents of the solicitors' letter represented a perfectly proper attempt by the employer's solicitor to settle the existing claim relating to sick pay. As such, it was deemed not possible to construe its contents as being dishonest or unambiguously improper. Furthermore, it was decided that those exceptions were not to be extended to incorporate the employee's complaints.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.