In this podcast, Andrew Edge discusses the Swiss Re v Sommer case, focusing on allegations of misconduct and costs warnings in WP correspondence. The hosts explore the without prejudice rule in employment law and its exceptions, as well as the practice of employers using various defenses to dismiss employees. They also analyze an employment tribunal case regarding improper conduct during settlement negotiations and compare it to the Swiss Re case. Additionally, they provide tips on drafting without prejudice letters containing serious allegations.
27:05
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Quick takeaways
The case of Swiss Re v Sommer highlights the need to distinguish between genuine settlement offers and threats in without prejudice correspondence.
The court must rigorously scrutinize evidence to determine if the behavior in question reaches the threshold of unambiguous impropriety, which is an exception to the without prejudice rule.
Deep dives
Case Summary: Admissibility of Without Prejudice Letters in Court
The podcast episode discusses a recent case, Swissery, which provides guidance on the admissibility of without prejudice letters in court. One key issue explored in this case is where the line is drawn between genuine settlement offers and threats. The court must determine whether the conduct in question constitutes unambiguous impropriety and abuse of the privileged occasion. The without prejudice rule aims to promote settlement by allowing parties to negotiate freely, but this does not grant a blank check for any communication. The employment context poses unique challenges, as employers may raise concerns and allegations related to defenses like misuse of email accounts or misconduct. The case highlights the importance of distinguishing between permissible behavior and unambiguous impropriety to protect the without prejudice rule.
Confidentiality, Allegations, and Victimisation in Employment Litigation
Employment litigation often involves confidential information and allegations concerning employee conduct. Employers may use without prejudice negotiations to raise concerns, present allegations, and potentially secure settlements. However, the case emphasizes the need to differentiate permissible behavior from making unfounded allegations or putting impermissible pressure on litigants. The podcast highlights a discrimination case where the employee sought to rely on a without prejudice letter to support a victimization claim. The court examined the employer's concerns regarding behavior infringing trust and confidence, breach of contract, and data protection laws. It concludes that raising arguable points and concerns in without prejudice letters is generally permissible, as long as there is a legitimate basis for the allegations.
Understanding Unambiguous Impropriety and Limitations of Without Prejudice Rule
The podcast delves into the concept of unambiguous impropriety, an exception to the without prejudice rule. To fall within this exception, the conduct in question must be clear-cut, egregious, and unambiguously improper. The court must rigorously scrutinize evidence to determine if the behavior reaches this threshold. The episode compares the Swissery case to the cautionary tale of Firstnet first-run, which involved exploiting discovered misconduct as leverage without a direct correlation to the relevant dispute. Employers are provided with guidance on drafting without prejudice letters, including the importance of raising concerns at a formative stage, using carefully chosen language, and distinguishing between acceptable allegations and unambiguous impropriety.
Andrew Edge talks to Hannah Slarks about his case, Swiss Re v Sommer [2022] IRLR 650. When will allegations of misconduct and costs warnings cross the line in WP correspondence?
