Unambiguous Impropriety

Friday 19th January 2018

Pre-termination negotiations between employer and employee are in general ‘without prejudice’, meaning they are not admissible as evidence in any subsequent tribunal claim.  An exception to this rule, considered by the Employment Appeal Tribunal (EAT) in Martin v McDevitt and Community Legal Services, is where the exclusion of such evidence would serve to conceal an act of ‘unambiguous impropriety’.

Mr McDevitt, who suffers from cerebral palsy, was summarily dismissed from his role as Legal Assistant with Community Legal Services in September 2015, following which he commenced claims for notice pay, holiday pay, wages, disability discrimination and a failure to comply with the duty to make reasonable adjustments.  During the Early Conciliation process (communications usually being without prejudice and non-disclosable), Community Legal Services sent an email to Mr McDevitt threatening to ensure that “the local political establishment, local employers and the public” were made aware of Mr McDevitt’s attempt to “enrich himself based on a claim that has no basis whatsoever.”

The Employment Tribunal found the content of the email to be an example of unambiguous impropriety and consequently to be admissible in evidence.  The Community Legal Services appealed.

The EAT held that the Employment Tribunal had erred by assessing the issue on whether or not the words contained in the email were unambiguous; the issue should be decided on whether the statement as a whole in the email is unambiguously improper.  The matter was remitted back to the same Employment Tribunal to reconsider in light of the EAT’s findings.

Comment:      The judgment from the EAT shows that there is a high threshold for pre-termination communications to constitute ‘unambiguous impropriety’.  In particular, the EAT held that, in settlement negotiations, it is acceptable for a respondent to:

  • draw attention to the fact that a tribunal hearing is in public and that the press may be there;
  • draw attention to the fact that the press may be notified that the case is to be heard; and
  • to state that it intends to take the position that the claims against it are spurious.

However, it is likely that whether the statements are found to be unambiguously improper or not will depend on the context and whether they are deemed to be excessively threatening.