Veitch Penny LLP - Exeter | Crediton, Devon

Case

Mezzoterro v BNP Paribas
Employment Appeal Tribunal - (30 March 2004)

Issues

(1) “Without prejudice” communications
(2) Privilege
(3) Negotiations

Facts

Mezzoterro had been employed as the 1st Vice President of the employer’s company. She took maternity leave between March and November 2002. Prior to her return she alleged that she had been discouraged from returning to work by two Managers. When she recommenced work she alleged that she had been prevented from continuing in her role and in effect had been demoted.

She submitted a grievance to her employer via its grievance procedure regarding her treatment on her return from maternity leave.

She then returned in January 2003 and attended a meeting with two Managers. They wanted to speak to her on a “without prejudice” basis and suggested that she could consider a mutually agreed termination package as the employer was not prepared to reinstate her to her old position upon her return to work. By using the phrase “without prejudice”, the employer was trying to prevent the meeting from being disclosed in Court and being used as evidence. Mezzoterro then resigned on the basis that her grievance was unlikely to be considered fairly. She claimed sex discrimination, victimisation and unauthorised deductions from wages.

A preliminary issue arose – was the meeting subject to legal privilege? Mezzoterro wanted to use the discussions in support of her claim. The civil courts had determined that the term was only effective to protect discussions related to a genuine dispute.

The Employment Tribunal found that the meeting was not without prejudice and not subject to legal privilege on the basis that the negotiations were not genuinely aimed at the settlement of the dispute, indeed the dispute arose from the meeting itself.

The employer appealed arguing that the tribunal had been wrong to find that there was no dispute between them.

Decision

The appeal would be dismissed.

The tribunal had been entitled to make the finding it had – the employer’s statements had not been made in a genuine attempt to reach compromise of the dispute.

The evidence showed that the employee’s grievance at the point immediately preceding the meeting was that she did not have her old job and not that she had no job at all to return to.

Comments

This case highlights the dangers faced by employers when dealing with employees they no longer wish to retain. The use of phrase “without prejudice” should be used carefully purely for the purpose of settling a dispute. It should be noted that in this case, an employee’s grievance does not amount to a dispute. Employers should adopt and utilise the correct dismissal procedures on an open basis whilst any without prejudice negotiations take place entirely separately. In the event that the negotiations fail, the employer may then refer to the dismissal procedure to ensure that the dismissal is fair.