Disciplinary linked to Without Prejudice/Protected Conversation

22 November 2017

An employee’s conduct during a Without Prejudice discussion or ‘protected conversation’ (section 111A of the Employment Rights Act 1996) cannot become the subject of a disciplinary matter without waiver of the Without Prejudice privilege.

This matter arose in the Employment Appeal Tribunal (EAT) case of Graham v Agilitas IT Solutions Limited [2017] UKEAT/0212/17.

Here, the employee – a Sales Director at an IT company – raised allegations against the company to the CEO within a Without Prejudice conversation. The company subsequently sought to use the employee’s actions as one ground of a disciplinary for breach of trust and confidence. By doing so the company waived the Without Prejudice privilege that had attached to the conversation in question.

At the EAT, President Simler noted that the company could not cherry-pick parts of a conversation which were Without Prejudice whilst also “waiving privilege or suggesting that matters spoken by the [Employee] in the self-same meeting were not subject to the same without prejudice rule”.

The Nottingham Employment Tribunal’s finding that Without Prejudice privilege had not been waived was unsupported and the point directly above had not been dealt with by the Employment Judge.

The case was remitted to the same Employment Tribunal to deal with the case in light of this new finding regarding evidence from the meeting in question.

As a reminder:

  • Without Prejudice privilege applies where litigation is in contemplation in the event that parties cannot agree a way forward. Any voluntary waiver of  Without Prejudice privilege must be mutually agreed unless there has been ‘unambiguous impropriety’ (e.g. threatening behaviour or violence, perjury or blackmail).
  • Pre-termination negotiations (under s.111A, ERA 1996) can be instigated by an employer or an employee with a view to agreeing the terms of the employee’s exit. Such conversations cannot be referred to in any subsequent litigation unless they demonstrate automatically unfair dismissal or improper behaviour. In contrast to Without Prejudice conversations, protected conversations or pre-termination negotiations can take place without a pre-existing dispute and the parties are not able to waive the protection by mutual agreement.
  • In practice Without Prejudice conversations and pre-termination negotiations frequently run in parallel.

If you have any questions about this case or the issues raised by it then please contact us. We are highly experienced in guiding clients through these conversations and the issues they raise.