‘Without prejudice’ communications and ‘protected’ conversations

Most employers are aware of the availability of ‘without prejudice’ discussions and ‘protected conversations’ as a way to hold exit negotiations with employees. Confusion can arise when choosing which type of meeting to hold and whether what is said in these meetings can be mentioned elsewhere.

In the recent case of Graham v Agilitas IT Solutions Limited the Employment Appeal Tribunal (EAT) considered if an employer can rely on comments made by an employee during a ‘without prejudice’ discussion, or ‘protected conversation’, in a subsequent disciplinary hearing.

Facts

Mr Graham was employed as a sales director by Agilitas from November 2013. He was also a shareholder in the company. The company’s board had concerns about Mr Graham’s performance and so the CEO held ‘without prejudice’ conversations with him to discuss these concerns.

An initial ‘without prejudice’ meeting was held on 12 August 2015. Subsequent ‘without prejudice’ conversations took place over the following months to discuss options regarding Mr Graham’s employment and potential dismissal.

On 21 June 2016 Mr Graham was suspended pending an investigation into allegations of gross misconduct. The allegations against him were set out in a letter dated 12 July 2016. One of the allegations the company relied on as amounting to gross misconduct were words spoken by Mr Graham during the course of the meeting held on 12 August 2015.

Mr Graham was dismissed without notice on 9 August 2016 and he brought claims of unfair dismissal, wrongful dismissal and unlawful deduction from wages. Mr Graham claimed that his dismissal was predetermined and that the real reason for his dismissal was a desire to take his shares in the company. Mr Graham alleged improper conduct during the course of the ‘without prejudice’ conversations.

Decision

Following a preliminary hearing the Employment Tribunal (ET) decided that the relevant meetings had all been on a ‘without prejudice’ basis and were ‘protected conversations’. The conversations were therefore not admissible as evidence. Mr Graham appealed.

The EAT agreed that the conversations were ‘without prejudice’ and therefore inadmissible. It also noted that the company could not seek to waive privilege in relation to parts of the conversation for its own benefit whilst leaving other parts privileged to protect themselves.

The ET had not made a finding as to whether the company had waived its privilege by relying on comments made by Mr Graham in the ‘without prejudice’ conversations as a basis for a disciplinary procedure. The EAT remitted this point back to the ET to consider.

Comment

This case highlights the difficulty of trying to rely on comments made during a ‘without prejudice’ conversation or ‘protected conversation’ as the basis for a disciplinary process.

Importantly, employers need to be alert to when it is appropriate to use either ‘without prejudice’ or ‘protected conversations’. As a starting point, for both types of conversations, it is advisable to hold this conversation separately from an ‘open’ conversation to avoid any confusion as to which part of the conversation is protected and which is not. Well-documented minutes will also assist in ensuring that all parties are aware of the nature of the conversation.

If raised before a Tribunal it will be the content of a meeting and not the label attached to it that will decide the issue.

Below is clarification as to when you may wish to use ‘without prejudice’ or ‘protected conversations’.

Without prejudice

The ‘without prejudice’ rule prevents anything said or written during a genuine attempt to settle an existing dispute from being relied on as evidence in any subsequent litigation.

The most important point to note is that there must be an existing dispute. This does not mean that there needs to be a formal claim, but litigation must be in contemplation if an agreement is not reached.

When considering if there is an existing dispute, the fact that an employee has raised a grievance is not automatically sufficient by itself to evidence an existing dispute. The individual circumstances will always need to be considered.

Protected conversations

The introduction of protected conversations was to provide an avenue for full and frank discussions where there is no existing dispute. Protected conversations are a useful tool for employers who have underperforming employees. It enables an ‘off the record’ conversation to take place which cannot be used in any future unfair dismissal claim. Even if both parties agree, the protected nature of the conversations cannot be waived.

Although helpful, protected conversations are only inadmissible in ordinary unfair dismissal proceedings. If there is any suggestion the employee may make a discrimination claim, for example, protected conversations might not provide any protection for the employer.