Tribunal Considers Limits Of 'Without Prejudice' Protection For Settlement Correspondence

• Published date: 01 August 2022
• Law Firm: Herbert Smith Freehills
• Author: Ms Anna Henderson

Employers and their advisers seeking to settle claims on termination of employment may be tempted to flag the potential for serious consequences for the employee should they refuse, for example alleging that their misconduct could amount to criminal or regulatory offences. There is a risk that allegations are made without due care, on the assumption that the communication will be protected from disclosure in any future tribunal proceedings by without prejudice privilege. However, this protection will be lost if comments amount to 'unambiguous impropriety'. A recent case has flagged the fine line between acceptable comments and improper pressure amounting to...