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Do the Rules on Protected Conversations Always Apply During Proceedings?

In the recent case of Graham v Agilitas IT Solutions Ltd, the Employment Appeal Tribunal considered the effect of relying on “without prejudice” or protected conversations during a dismissal procedure.


The legal “without prejudice” rule generally prevents statements made in genuine attempts to settle an existing dispute from being used in subsequent proceedings as evidence against the party who made them. Further, under s111A of the Employment Rights Act 1996, certain protected pre-termination negotiations are inadmissible and cannot be relied upon in any proceedings. This includes any offers made or discussions held before the termination of the employment in attempts to terminate the employment on terms agreed between the parties. Such pre-termination negotiations can therefore not be brought into any subsequent proceedings if settlement is not achieved.

In this case, the Claimant was facing termination of his employment and had a number of “without prejudice” or protected conversations at meetings with the Respondent. Comments made during these meeting were subsequently used by the Respondent to form the basis of disciplinary action against the Claimant which ultimately led to his dismissal.

Accordingly, in the Claimant’s claim form, the Claimant referred to the discussions between the parties in these “without prejudice” meetings. Relying on the above principle, in a preliminary hearing, a tribunal judge ruled that these sections of his claim form should be deleted and the claim form should be resubmitted without reference to these conversations.

The Claimant appealed this decision to the Employment Appeal Tribunal who were tasked with considering whether the Respondent was able to rely on the comments made by the Claimant to justify their disciplinary action whilst also benefitting from the “without prejudice” shield in regard to their alleged improper conduct.

EAT decision

The EAT allowed the Claimant’s appeal. It held that the matter should be remitted back to the employment tribunal to decide to what extent the “without prejudice” discussions formed the basis of the disciplinary allegations made against the Claimant. Further, that the evidence needs to be evaluated to decide whether the Respondent has waived privilege by relying on “without prejudice” information in its disciplinary action. In effect, the Respondent should not be allowed to waive their privilege in relation to parts of the meeting concerned but still get the benefit of privilege in relation to their conduct. Where privilege has been waived by the Respondent, it was open for the employment tribunal to examine alleged improper conduct as part of the proceedings against the Respondent.

This case acts as a reminder to employers of the principles of privileged or “without prejudice” communications. In particular, whilst “without prejudice” discussions can be beneficial in achieving settlement during an employment dispute, an employer cannot then selectively use information gained during such discussions in any subsequent proceedings to their advantage.

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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