Appeal No.	 EAT/1002/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 October 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
LORD DAVIES OF COITY CBE
MR T C THOMAS CBE

KNIGHTSTONE HOUSING ASSOCIATION	APPELLANT

MRS L CRAWFORD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant		
For the Respondent		

MR JUSTICE HOLLAND:		This appeal has featured a short strongly argued point.  The point arises in the following circumstances.  By way of an Industrial Tribunal 1 dated 30th April 1999, Mrs Lesley Crawford complains of indirect sex discrimination and/or indirect marital discrimination contrary to the various sections in the sex discrimination act 1975 and she further complains of unfair dismissal.  The Respondents to all those complain are her former employers, Knightstone Housing Association. 

2.	It is a material to look at the details of complaint as appended to the IT1 which details were plainly drafted by the solicitors who have acted for her throughout. 
Turning then to paragraph 10 of the IT1 the case is developed in these words

I consider that 
by denying me my request for part time or alternatively job share employment from the date of my return from extended maternity absence by its letter dated 1st February 1999 (the 1st request) and 
by denying me a further such request by its letter dated 7th April 1999 (the second request).  

3.	The Respondent unlawfully discriminated against me in the indirectly on the grounds of sex contrary to sections 1(1)(b) and 6, the Sex Discrimination Act 1975 and/or the grounds of my marital status contrary to section 3(1)(b) of the 1975 Act.  

4.	The Associated Case for unfair dismissal appears at the end of the Industrial Tribunal 1 in these terms.  

“Further or in the alternative I claim the Respondent’s actions as described above undermine my trust and confidence entirely and that I was constructively and unfairly dismissed in the circumstances”

6.	Turning to the body of the body of the matters recited in support of her complaint.   We observe that in paragraph 10K she identifies the “first request” under then in paragraph U, she identifies the “second request”. 

7.	Coming then 10w, this reads:   

“I feel that the Respondent through Mr Blake had set its mind against a part time or job share arrangement from the outset.  The Respondent’s reasons for rejecting the first and second request have never been fully canvassed and they have shown inconsistency in the matter to the matter. Furthermore, the Respondent has failed to make any alternative proposal which would have enabled me to preserve my employment in my ………..in any capacity”.

17.	Turning then from the IT1 to the problem that arises, it is necessary to record that there was for a period of time exchanges between the parties made expressly on a without prejudice basis.   Those exchanges started with a telephone conversation from Mr Henney, solicitor for Mrs Crawford on 16th March 1999.  We have the advantage of seeing a file note, prepared by the recipient of the telephone call, Mrs Anne Duff, an employee of the Housing Association. 

18.	By way of that telephone conversation, it I plane that Mr Henney, on an expressly without prejudice basis sought to initiate discussion as to a possible way to return his………to some suitable employment on a basis lesser than full time.  Their initial conversation was followed up accordingly to the file note with subsequent conversations and then in the course of a telephone conversation of 26th March, it appears that Mrs Duff now in a position to respond to a Mr Henney having discussed the matter with the Housing Association’s Mr Blake, put forward a proposal.  That proposal was taken by Mr Henney to Mrs Crawford and that, in its term, achieved a response again by way of a without prejudice letter, this time dated 6th April 1999.  That reads:

“Dear Mr Evans,Without Prejudice, Re: Our  Client Mrs Lesley Crawford
I regret to say that having given careful consideration that the Association’s without prejudice proposal, Mr Client feels she has no alternative but to reject it.   It appears to her to be administratively unworkable (because of the overlap and the times of reporting to local authorities and other care providers and a relation of staff management, as well as being unattractive to a job share partner”.

19.	Turning back to the narrative appended the IT1.  It is apparent that by a separate letter on that day, which letter was open, the events associated with the second request were set in motion.  There is additional to this exchange on a without prejudice basis, a further letter that requires consideration given the point that is raised, and that is an open letter of the 7th April 1999 from Mr Evans of the Association to Mr Henney on behalf of Mrs Crawford.  That letter reads:

“Thank you for your fax received at this office this morning.  I note Lesley’s decision to reject ………………….proposal put to you by telephone on 26th March 1999, that Lesley has returned to work on a part-time or job share basis would be conditional upon (among other things) Lesley working a five day week of half days.  You will recall that Anne Duff was quite explicit that the 5 day week of half days was not a negotiable element of Lesley’s proposal and I must consequently advise you that Knightstone has no option but to accept Lesley’s letter of resignation of 15th February 1999 and terminate her contract of employment with effect of 7th April 1999.  Please advise your client with any termination payments together with a P45 and P60 will be forwarded to Lesley in due course”.

20.	On behalf of the Association Ms Gill submits that there should be admitted before the Tribunal so much of that which passed on a without prejudice basis between the parties.  As to reveal that their had been that proposal made by the Association on 26th March.  That is that there had been a proposal for a return to work on a three month trial, of a two and a half day per week job share.  She submits that it is appropriate that that should go before the tribunal to deal with two of the contentions set out in paragraph W.   First, she submits that it should be admitted so as to enable Mr Blake to deal fully with the contention that the association through him had set it’s mind against a part-time or job share arrangement from the outset.  Second, she would submit that the fact of the proposal should be admitted notwithstanding the without prejudice …………………..in order to respond to the contention that there had been a failure by the association to make any alternative proposal which would have enabled Mrs Crawford to preserve her employment in her role in any capacity.  

12.	That submission, has been partly disputed by Mr Henney on behalf of Mrs Crawford and it came for a ruling before an employment tribunal sitting at Bristol on the 1st September 1999.  That tribunal having heard argument, unanimously decided that 

“the Respondent is not entitled to produce evidence of the substance of the without prejudice negotiations which have taken place in this case”.

Against that decision, there has been appeal to this tribunal well argued before us this morning.  The law that bears upon this matter appears from various cases with the crucial considerations emerging from a decision of this tribunal, Independent Research Services Limited, the C……. 1993 ICR page 1.  At 6(b) identified the problem as follows:

“As often happens in difficult cases, two well established and valuable legal principles collide.  One is, that it is desirable that Courts and Tribunals should have all the available material before them with which to arrive at a just conclusion in accordance with law.  The other is, that it is desirable that parties should be in a position freely to negotiate a compromise of their dispute without having what they say in the course of those negotiations revealed subsequently and used against them in litigation or proceedings before a tribunal”

13.	For our part, we need no persuading that the sanctity of that which passes on a without prejudice basis, when that label is appropriately attached, it is a matter of real importance to the administration of these tribunals, just as it is with the administration of courts.  Mr Henney has emphasised the strength of that point.  He himself sited independent Research Services from C…. and he further sited a decision of the Vice Chancellor in S………..F……… Lint and Sprungley AG v. The Nestle Company 1978 RPC at 287. We have no desire at all to seek in any way to water down the importance of …………………is properly attached to the efforts of persons like Mr Henney to resolve their client’s difficulties without resort to tribunals.  

14.	In this regard we have the considerable advantage of a very fair note of what passed between Mr Henney and the association and one can see there in almost classic terms that which is properly done by solicitors trying to save their clients from the expense and tension of litigation.  All that said as was acknowledged in Independent Research Services and …………their have to be occasions in which justice requires resort to the material that is passed without prejudice.  In Russian Tompkins Limited, the Greater London Council 1989 AC1280 Lord Griffiths pointed out that the rule was not absolute in these terms

“resort may be had the without prejudice material when the justice of the case requires it.  It is unnecessary to make any deep examination of these authorities to resolve the present appeal but they all illustrate the underlying purpose of the rule which is to protect………………from being embarrassed by any admission made purely in attempt to reach the settlement”.  

It was this balance that was identified in Independent Research Services v. C………. and which though at heard of that decision emerging B7 in these terms, we have therefore looked to see whether we are of the view that the exclusion of the without prejudice material and persistence in the applicant’s case as pleaded in his originating application involves something of the nature of dishonest conduct on his part.   Tested by that tested we conclude that the material should remain hidden from the Industrial Tribunal because we do not think that there is dishonesty involved in such an attitude.  To us Mr Henney submits that we should take precisely the same course, he submits that if anything in that case provided stronger reasons for opening up the ………… of the evidence to receive the without prejudice material he submits that this is not such a case at all.  

15	Having for our part having considered the respect of submissions, we have no doubt but that to the limited extent sought by Ms Gill, this appeal has to be allowed.  The essential point is as follows:

“The concern here is not to put in evidence, admissions made by Mrs Crawford on a without prejudice through the good offices of Mr Henney.  It is not to seek to undermine her evidence or her contentions.  The concern here is to allow the association and in particular Mr Blake to have justice at the hands of the tribunal.  It was Mrs Crawford’s own decision through her solicitors to make the contention that the association through Mr Blake had set its mind against a part time or job share arrangement from the outset.  That was her contention.  She was not obliged to make it, but she chose to do so.  It therefore, plainly in the interest of justice, that Mr Blake should enable to give a full explanation as to his attitude and he should not be shut out from giving that and by the fact that when in a without prejudice context arguably, the associations mind was not so.  Again, if she chooses to contend, as she has done, there was no alternative proposal made which enabled her to preserve her employment in her role in any capacity then the association must be made…………….fully to deploy it’s case, even if that case includes and seemingly it does, of the fact of just such a proposal and made on a without prejudice basis, but one in which , incidentally, could have been made open at the besets of  Mrs Crawford, that is by her accepting”.   

15.	We ........... from using the word dishonest conduct as was adopted in independent research services v. C……….  We prefer to take the line there having lead with her chin, then she, in effect, by paragraph W herself opened up so much of the without prejudice material as revealed the fact that the association had made an alternative proposal to her. 

16.	We are encouraged to take that line by the reflection that the tribunal considering this matter will be quite unable to make any sense of the open letter of the 7th April without having some deployment as to what preceded it.  It will be appreciated that the proposal referred to in that letter is the proposal that the association wishes to put in evidence.  There is at the moment, without this ruling on our part, a plain and essentially unnecessary problem and that is as to the evaluation on that letter and as to its significance with the appeal allowed to the extent indicated.  The tribunal is able to look at this part of the matter in the round and as we perceive it, both parties can have the advantage of a fair and just position on this aspect of the matter.   It was not for nothing that we started this hearing and by querying as to whether it wasn’t in interest of Mrs Crawford as well as the association to have the without prejudice material in because on the face it, certainly on one view, it does no harm to a case and it does enable one to see the full flow of events during this particularly crucial period.  

17.	We emphasise it would seem on the face of it impossible that any tribunal fully to adjudicate on this matter without having a careful consideration of the open letter of the 7th April, not least because on the face of it that brought the employment to an end thus to extent that we have indicated we allow this appeal in the judgement of this tribunal the employment tribunal was wrong in law, wrong as the mixed question of law and fact, in making the ruling that it did, we would allow the tribunal hearing on this matter to have any evidence the fact of the proposal.  

18.	We would suggest that it is the interest of both parties to work out the full terms of that material so that it goes before the tribunal properly and they be on reflection that everybody will think that will be more advantageous as we suggested to have the full without prejudice material in but that it not our present decision and that has amounted for tactics to be agreed between two very experienced practitioners.