The parties had engaged in pre-termination negotiations in August 2022 and it was agreed there there was no actual or contemplated legal dispute between them at the time so the without prejudice principle did not apply. In subsequent unfair dismissal proceedings the claimant sought to rely on those discussions as displaying improper behaviour but the judge disagreed.

In this judgment, the President provides a thorough review of the principles in this situation before rejecting the three grounds of appeal and concluding the decision in the ET was not perverse.