Without Prejudice – ‘Protected’ Conversations

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In Graham v Agilitas IT Solutions Ltd the EAT held that a Respondent could not rely on parts of a ‘without prejudice discussion’ or protected conversation and at the same time use the rules to protect itself.

The Claimant was about to be dismissed. During discussions which the employer described as being ‘without prejudice’ under s111A of the Employments Right Act 1996 the Claimant made some comments which were then used by the Respondent as the basis of the forthcoming disciplinary action. The Claimant argued that there had been improper conduct in this meeting in the form of bullying and threatening behaviour by the Respondent.

The EAT held that a dispute arose far earlier than originally thought from existing case law meaning that in theory the without prejudice rule could apply for the discussions. The EAT went on to find that the employer could not pick and choose which parts of the meeting were protected in order to preserve its own conduct and that the Claimant would be entitled to have the improper conduct examined by the Tribunal. The case was remitted to the Tribunal for re-hearing.

Written by
Lorraine Emery
14th December 2017