Kelly Kelly v Skandia Restaurants Ltd Skandia Restaurants Ltd Andrew Davis

Factual and Procedural Background

The Plaintiff was employed as a part-time supervisor by Company A. The Plaintiff alleges disability discrimination, age discrimination, and constructive unfair dismissal against Company A and an individual respondent. The case had been previously case-managed, and a pre-hearing review was convened, at the joint request and consent of both parties, to determine the admissibility of a "without prejudice" letter dated 16 October 2014 from the respondents' solicitor to the Plaintiff. This pre-hearing review was scheduled following the Court of Appeal decision in McKinstry v Moy Park and Others, with the same tribunal panel hearing both the pre-hearing review and the substantive hearing in quick succession to minimize delays from satellite litigation.

Legal Issues Presented

1. Whether the "without prejudice" letter dated 16 October 2014 is admissible as evidence in the substantive hearing.
2. Whether the admissibility of the letter is suitable for determination at a preliminary pre-hearing review or should be deferred to the substantive hearing.

Arguments of the Parties

Appellant's Arguments

• The letter was part of a process designed by the respondents to force the Plaintiff out of employment, constituting discrimination on grounds of age and disability.
• The letter contributed to the Plaintiff's decision to resign, thus forming part of the constructive unfair dismissal claim.
• The Plaintiff was unrepresented and vulnerable when receiving the letter, was not advised to seek legal advice, and was given an unreasonably short time to respond.
• The letter demanded resignation as part of a settlement offer and was not a genuine attempt to resolve the dispute, amounting to "unambiguous impropriety."

Appellee's Arguments

• The letter was a standard, genuine attempt to resolve litigation and should be considered inadmissible as evidence.
• The tribunal can determine the letter's inadmissibility by examining its terms without further extensive evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McKinstry v Moy Park and Others	Guidance on the admissibility of "without prejudice" communications and the appropriateness of preliminary hearings to determine such issues.	The court relied on this decision to emphasize that preliminary issues should only be decided if they present a succinct knockout point and do not overlap substantially with the merits of the case; determined that the admissibility of the letter should be deferred to the substantive hearing.
SCA Packaging Ltd v Boyle [2009] UKHL 37	Principle that tribunals should exercise caution and sparingly use preliminary hearings to decide separate issues.	Supported the approach that preliminary determinations require a clear, separable issue capable of quick resolution; applied to reject a separate pre-hearing review on the letter's admissibility due to overlap with substantive issues.

Court's Reasoning and Analysis

The tribunal carefully considered whether the admissibility of the "without prejudice" letter could be resolved at a pre-hearing review. It acknowledged the parties’ detailed submissions and relevant authorities, including the Court of Appeal’s decision in McKinstry. The court noted that determining admissibility involves issues of privilege, which likely require evidence and cross-examination from both parties, including the solicitor who drafted the letter and their instructing party. The tribunal found that the letter's admissibility is intertwined with the merits of the substantive claims of discrimination and constructive unfair dismissal. Because the Plaintiff alleges that the letter was part of a discriminatory process and contributed to her resignation, the court concluded that these issues could not be severed for a preliminary determination without risking overlap and delay. The tribunal also recognized that any prejudice from deferring the issue is minimal, as the substantive hearing would allow for a full and fair assessment of the letter's admissibility, including the opportunity to exclude it if deemed inadmissible. Accordingly, the tribunal determined that a separate pre-hearing review on this issue was inappropriate and unnecessary.

Holding and Implications

The tribunal held that it would be inappropriate and unnecessary to rule on the admissibility of the "without prejudice" letter at the pre-hearing review stage. Instead, the admissibility will be determined as part of the substantive hearing on the claims.

The direct effect of this decision is that the issue of the letter's admissibility will be addressed alongside the merits of the Plaintiff’s claims, allowing the tribunal to consider all relevant evidence and witness testimony. No new precedent was established; rather, the tribunal applied established principles emphasizing caution in preliminary determinations and the avoidance of satellite litigation delays.