'Protected' conversations

As an employer, can you rely on parts of a 'without prejudice discussion' or a 'protected conversation' as evidence whilst at the same time using those rules as a shield?

An interesting case highlighted this issue, where the Claimant was facing termination of employment. The case was Graham v Agilitas IT Solutions Ltd.

Without prejudice

This case involved talks which the Respondent employer had characterised as being without prejudice and / or protected under s111A of the Employment Rights Act 1996. During these talks, the Claimant made comments which the Respondent subsequently used to form the basis of disciplinary action.

The Claimant alleged improper conduct / unambiguous impropriety by the Respondent in the form of bullying and threatening behaviours in the same meeting.

Kate Fretten, Partner in Frettens' Employment Team, says “The Employment Appeal Tribunal held that the Respondent employer could not waive privilege on parts of the meeting and rely on privilege in relation to other parts to shield its conduct. The Claimant was entitled to have the Employment Tribunal examine the improper conduct. This case has been remitted. It is advisable to assume all elements of protected conversations should not be included or relied upon as evidence.”

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.