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‘Without prejudice’ and ‘protected conversations’ – getting it right as an employer

The need to exercise caution when it comes to using 'without prejudice' discussions and 'protected conversations' to ease along exit negotiations with an employee - and to appreciate the difference between the two, their advantages and limitations - has been illustrated by a recent case heard at the Employment Appeals Tribunal (EAT).

In the case of Mr S Graham v Agilitas IT Solutions Ltd, the EAT had to consider whether without prejudice privilege applied to conversations in which the employer raised performance concerns with the employee.

During these talks, sales director Mr Graham (the claimant), made comments which Agilitas (the respondent) subsequently used to form the basis of disciplinary action. Mr Graham alleged improper conduct/unambiguous impropriety by Agilitas in the form of bullying and threatening behaviours in the same meeting.

Mr Graham was dismissed in August 2016 for gross misconduct and a breakdown in trust and confidence. He took his case to an employment tribunal for unfair and wrongful dismissal. At a preliminary hearing, the tribunal found that all of the relevant earlier meetings had been conducted on an agreed 'without prejudice' basis and also amounted to 'protected conversations'. Evidence about the meetings was therefore inadmissible, it found.

Mr Graham appealed to the EAT which held that his former employer could not waive privilege on parts of the meeting and rely on privilege in relation to other parts to shield its conduct. It sent the case back to the employment tribunal to examine the improper conduct.

So, what's what?

'Without prejudice': In a nutshell, the 'without prejudice' rule prevents anything written or spoken in a genuine attempt to settle an existing dispute from being presented as evidence in any subsequent litigation.

The key term here is 'existing dispute' - for the 'without prejudice' rule to apply, a dispute must exist and the 'without prejudice' discussion must also be a negotiation that is attempting to settle the dispute.

Importantly, the shield of 'without prejudice' can't be used to hide 'unambiguous impropriety' - an allegation made by the claimant in Mr S Graham v Agilitas IT Solutions Ltd. This basically means not using it as an excuse to act in an underhand way by victimising, threatening, bullying or being discriminatory towards the other person.

'Protected conversations' were introduced to enable parties to have 'off the record' discussions where there is no dispute. Neither their content nor even the fact they took place can be disclosed in litigation, even if both parties agree.

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