BIAS AT BRUNEL

Brunel University & another v Vaseghi & Webster

The law says that parties to a dispute can have "without prejudice" discussions so that any proposals they make to settle cannot ultimately be used against them if the dispute ends up in court. However, the Court of Appeal said– in Brunel University & another v Vaseghi & Webster – that there can be circumstances when employers may lose their right to claim that the discussions were “without privilege”.

Ms Webster’s union, the AUT (now the UCU), instructed Thompsons to act on her behalf.

Basic facts

Professor Veseghi and Mrs Webster brought race discrimination claims against the university. In each case, the parties agreed to “without prejudice” settlement discussions before the start of the actual tribunal hearings but as these did not succeed, the hearings went ahead.

Both cases got as far as the Court of Appeal. In September 2004 and March 2005, while the claims were being appealed, the vice-chancellor wrote two articles in the university newsletter which specifically referred to the cost of two AUT cases, but did not name the claimants. He later stressed that the university would ”defend its reputation against unfounded allegations, especially when these are accompanied by unwarranted demands for money”.

Professor Vaseghi and Ms Webster considered that his comments amounted to victimisation, and lodged (unsuccessful) grievances in April and May 2005. They pointed out that far from making any demands for money, counsel for the university had actually initiated settlement discussions with their lawyers.

They then took their victimisation claims to a tribunal. In its response, the university attached the report of the grievance hearings referring to the settlement discussions. A joint bundle of documents was prepared containing reference to the settlement discussions, and witness statements were exchanged, including a statement by Professor Vaseghi’s s solicitor (Ms Vadgama) which said that he had been offered £40,000 to settle.

Tribunal decision

At the hearing the university objected to Ms Vadgama’s evidence being included, on the basis that it breached the “without prejudice” rule. The claimants then pointed out that the documents were peppered with reference to the discussions and therefore also breached the rule.

The tribunal decided that references to the settlement discussions in the statements of Professor Vaseghi and Ms Vadagama were inadmissible, but that references in the grievance panel's reports were admissible.

Both sides appealed that decision.

EAT decision

The EAT said that both parties had not maintained the confidentiality that “without prejudice” privilege was intended to protect. The university had run the grievance hearing like an independent trial, and had not asked for the evidence to be excluded from the committee's reports.

However, it disagreed with the tribunal that there should be a distinction between different types of evidence and allowed Professor Vaseghi’s and Ms Webster’s cross-appeal but dismissed the university’s appeal.

Court of Appeal decision

The Court of Appeal said that, in the vast majority of internal grievance hearings “there will be no question of waiver if the parties mention matters covered by 'without prejudice' privilege.”

However, in this case, the university set up something quite different from the usual employer and employee grievance meeting. The panel members were selected because they knew nothing about the dispute or the people involved in it. Their function was not to try to resolve the grievance (as is usual), but to act as independent adjudicators.

Because of the particular and unusual circumstances of this case “where the proceedings were in effect a trial of the victimisation issues by an independent panel and where both parties gave or called evidence of the previous negotiations, the EAT was entitled to conclude that privilege had been bilaterally waived.”

It also said that once both sides had referred to the “without prejudice” discussions in both the ET1 (the claimant’s application form) and ET3 (the employer’s response form), they had all effectively waived their right to claim that the discussions were privileged.