Admissibility of without prejudice discussions

In Brunel University and anor v Vaseghi and anor, the EAT has examined the increasingly common issue of the admissibility of "without prejudice" settlement discussions in victimisation cases.

In this case, two employees made separate complaints of race discrimination and without prejudice settlement discussions took place immediately prior to the tribunal hearing. Following this litigation, both employees brought grievances based on the employer's newsletter, which referred to their "unwarranted demands for money". The employees claimed this was victimisation. Their grievances were heard by an independent committee, and oral evidence was given about the settlement discussions which took place prior to the tribunal hearing. This evidence was also referred to in the committee's report on the grievance. Both grievances were rejected and the employees initiated tribunal claims for victimisation.

The EAT examined the without prejudice discussions. It held that the evidence of the without prejudice settlement discussions which took place prior to the initial hearing should be admissible. In discrimination cases, it was acknowledged that the need to get to the truth and eradicate discrimination may tip the scales against protecting the without prejudice privilege. In relation to the committee report, the EAT noted that the conduct of both parties throughout the grievance hearing was totally inconsistent with the maintenance of confidentiality which the privilege was intended to protect. The parties had therefore waived the without prejudice privilege and the committee report was also admissible.

Whilst many employers are aware of the label of without prejudice, this case is an important reminder that without prejudice discussions will not always attract complete protection from disclosure, and therefore may be admissible at tribunal.

Statutory dispute resolution procedures

The EAT has handed down a decision dealing with two issues governed by the statutory dispute resolution procedures.

In London Borough of Lambeth and others v Corlett, the EAT held that a breach of contract claim (arising from a failure to pay notice monies, following summary dismissal) did fall within the provisions of the statutory procedures dealing with dismissal. The time limit for bringing the claim could therefore be extended by three months (such an extension generally applies where an employee reasonably believes at the expiry of the normal time limit, that a dismissal or disciplinary procedure is ongoing).

The EAT also commented on the recent case of Bisset v Martins and Castlehill Housing Association Ltd (covered in our update on 8 September) which held that if an employee brings a discrimination claim against another individual employee, the time limit for bringing such a claim cannot be extended under the statutory grievance procedures, since these procedures do not apply as between fellow employees. Whilst the EAT did not express a concluded view on the correctness of this decision, it did cast some doubt on the reasoning, noting that this issue is plainly arguable, of some importance and must wait to be decided in a future case.

Pension provisions of age regulations - consultation closes on draft regulations

A brief period of consultation on draft regulations amending the pension provisions of the Employment Equality (Age) Regulations closes today. The draft regulations are due to come into force on 1 December 2006, after the implementation date for the pension provisions was delayed last month (as reported in our update on 22 September). The reason for the delay was to allow for necessary changes to be made to ensure the Regulations can be applied to pension schemes.

The Government seems to have listened and appears intent on making these changes. Welcome clarification has also been added in many places, in particular to key definitions and the scope of the aspects which relate to pension provision to ensure the Regulations apply to employers.

Other draft amendments worth noting are the exceptions for pension scheme members of closed sections as a result of certain transfers and compulsory TUPE transfers; a new length of service exemption which permits employers to treat longer serving members more favourably than those with less service when it comes to scheme eligibility and admission as well as benefit accrual (although justification is required if the shorter service member has completed five or more years of service); permitting benefit enhancement for those members who are made redundant or retire on the grounds of ill health; and expanding on the exemptions which relate to personal pension schemes.

However, some of the draft changes to the definitions may add further confusion. It is hoped that they are addressed by the time the final Regulations are issued, which should be by mid-November 2006.

Smoking ban on the horizon

As reported in our update on 8 September, the Department of Health recently launched a consultation on draft regulations under the Health Act 2006 providing for smoke-free public places, workplaces and vehicles. Consultation on these regulations has now closed.

Due to come into force in summer 2007, the draft regulations propose that all work premises will be "smoke-free" if enclosed or substantially enclosed and that employers will be required to display a prominent "no smoking" sign in their workplace in accordance with minimum requirements. Employers will also have to take reasonable steps to prevent smoking in their premises and vehicles. Failure to comply with the requirements may give rise to a fixed penalty or fine.

We recommend that employers take steps now to prepare for the forthcoming regulations and to consider their effect on the workplace, by either drafting or reviewing smoking policies. We will cover the impact of the final regulations, once they are published, in a future update.

New guidance on redundancy

The DTI has published revised guidance on redundancy consultation and notification. Click here to access the updated guidance.

ACAS has also updated its advisory booklet on redundancy handling. Click here to view the booklet.

ACAS calls for earlier resolution of workplace disputes

The ACAS Chair, Rita Donaghy, has called upon both employers and employees to work together to resolve disputes in the workplace as early as possible. Ms Donaghy referred, in particular, to the impact of workplace mediation, and how this can encourage parties to address matters at an early stage and avoid conflict escalating.

Attitudes to the mentally ill

A new initiative was launched last week to encourage employers to improve the way in which they deal with mental health in the workplace.

It is estimated that 80 million workdays are lost each year to stress, depression and anxiety. "Action on Stigma" is a new initiative intended to enable employers and organisations reduce the incidence and impact of mental health problems in the workplace. The initiative encourages employers to sign up to a set of principles, in order to demonstrate that people with mental health problems will be treated fairly and equally.

Click here to access the Department of Health's document outlining these principles.

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