The Court of Public Opinion, Part 2: Open Offers

Very few people like washing their dirty linen in public. That holds true as much for businesses and their employees as for anyone else. So when a business faces the prospect of public Employment Tribunal proceedings, there is a considerable incentive to try to settle the claim. Thankfully, in many cases, the parties are able to find some middle ground through negotiation, and eventually settle on a figure so that the claim is then dismissed or stayed indefinitely.

Those negotiations, whether in writing, by telephone or in person, are almost always on a 'without prejudice' basis so that they cannot be referred to at the Tribunal. This is so that a party making a settlement proposal is not regarded by the Tribunal as conceding that their arguments may not succeed at the eventual trial.

However, according to documents released to the press today, Chelsea made an 'open' offer of £1.2m to settle Dr Carneiro's claims of sex discrimination and constructive dismissal. Not only was it an open offer, but they referred to it on page one of their skeleton argument - one of the first documents the Tribunal panel will see (and which was released to the public and press at the same time). This is a very unusual step in Employment Tribunal claims – but then this is no ordinary Tribunal case, with a huge amount of press interest.

We can assume that a Respondent which makes a very substantial open offer and refers to it on page one of their skeleton wants to show the Tribunal that they have been entirely reasonable in their approach to the case (and possibly paint the Claimant as motivated by greed). It remains to be seen how this tactic will affect the Tribunal's view of the merits of the case, but the way this case is playing out suggests that there are really two trials happening here: one at the Tribunal and another in the media coverage. This strategy may be directed at the latter as much as at the former.

Reports from the Tribunal suggest that witness statements will be released to the press tomorrow (Tuesday) and that live witness evidence will begin on Wednesday. Connoisseurs of PR strategy may well want to follow what will no doubt be a fascinating case.