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Portnykh v Nomura International PLC is an important case for employers and employees. The Employment Appeal Tribunal has held that there is a “potential dispute” giving rise to “without prejudice” protection where an employer has announced an intention to dismiss the employee for misconduct and then negotiated with the employee about an alternative manner of dismissal.

Here the employer said it was going to dismiss the employee for misconduct. There then followed some discussions about making the employee redundant instead and the terms of a draft settlement agreement.

The negotiations broke down and the employee brought a Tribunal claim alleging he had been dismissed because he had made protected disclosures.

The employer sought to rely on evidence relating to the negotiations in support of its case that the dismissal had been by reason of misconduct. However, the employee argued that such evidence was without prejudice and, therefore, inadmissible. 

The Employment Appeal Tribunal agreed.

Sarah Rushton (

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information.


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