Woodward v. Santander UK Plc

The without prejudice rule broadly excludes communications made in genuine negotiations to settle litigation or a legal dispute. Its exceptions remain narrow. Evidence may be admitted for unambiguous impropriety, but discrimination claims do not create a wider exception merely because the evidence might support an inference of discrimination. The rule is not lost because communications enter the public domain. Waiver requires an unequivocal act. In discrimination proceedings, reliance on an actual comparator is an important detail of the claim. A tribunal may require permission to amend where the comparator was not identified and the respondent lacked fair notice. An Employment Appeal Tribunal may uphold a decision despite an error of law where the tribunal’s factual findings make the conclusion plainly and unarguably correct.

The claimant had brought earlier proceedings against her former employer, which were settled in 1996. She later brought claims concerning alleged victimisation, whistleblowing detriment and sex discrimination arising from attempts to obtain employment and references.

Following a 12-day hearing, the Employment Tribunal dismissed all claims. The claimant appealed two procedural rulings: exclusion of evidence about an alleged refusal, during the earlier without prejudice settlement negotiations, to provide a reference; and refusal of permission to amend her sex discrimination claim to rely on an actual comparator, Mr Gary Brown. The central issues were whether either ruling involved an error of law and, alternatively, whether the result would have been different had the rulings been made in the claimant’s favour.

1. Appeal dismissed. The Employment Tribunal correctly excluded evidence concerning the alleged refusal to provide a reference during negotiations for settlement of the earlier proceedings. The communications fell within the without prejudice rule.
2. The rule is a rule of evidence which, subject to established exceptions, excludes communications made in genuine negotiations aimed at settling litigation or a legal dispute. The exception for unambiguous impropriety is confined to the clearest cases. The policy supporting the rule applies equally, and with particular force, to discrimination disputes.
3. BNP Paribas v Mezzotero was not read as establishing a new discrimination-specific exception. Its reasoning was understood as concerning the absence of an extant dispute and conduct falling within the existing abuse principle. The claimant’s proposed wider exception was rejected as inconsistent with the parties’ freedom to negotiate.
4. The evidence did not disclose unambiguous impropriety. The rule was not displaced because the alleged fact had entered the public domain. There was also no unequivocal act amounting to waiver. Although earlier identification of the issue would have been preferable, the Tribunal had a wide case-management discretion and made no error of law by hearing the application at the start of the hearing.
5. The Tribunal was entitled to require permission to amend the claim to rely on Mr Brown as an actual comparator. Identifying an actual comparator, in addition to a hypothetical comparator, is an important detail which should be stated in the claim so that the issues are understood and the respondent has fair notice. The refusal of permission was within the Tribunal’s discretion under the principles in Selkent Bus Co v Moore.
6. In any event, the factual findings made the outcome plainly and unarguably correct. The findings showed that the respondent had not provided adverse references or feedback, and that the alleged comparator’s circumstances were materially different. The appeal could therefore have been upheld even if either challenged ruling had been erroneous, applying Dobie v Burns International Security.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s judgment dated 2 March 2009.
• Employment Tribunal: dismissed the claimant’s claims following a 12-day hearing.