How Protected is a Protected Conversation.

Posted on 27th November 2017

A recent decision of the Employment Appeal Tribunal in the case of Graham v Agilitas IT Solutions Ltd, highlights the cautious approach that should be taken by employers when relying on ‘protected conversations’ or the ‘without prejudice’ rule.
Under employment law, an employer is able to have a discussion with an employee about the possible termination of their employment without that discussion being admissible in evidence before an Employment Tribunal. This protection can arise through the longstanding ‘without prejudice rule’ or by way of a protected discussion.
In the case in question, Mr Graham was employed as a sales director. His employer, being concerned about his performance, had a number of discussions with him which included reference to the possibility that his employment may be terminated. The employer intended these discussions to be without prejudice/protected conversations.
In the course of the protected discussions, Mr Graham made comments which his employer considered to be gross misconduct which ultimately resulted in Mr Graham’s dismissal.

Mr Graham subsequently submitted a claim for unfair dismissal to the Employment Tribunal. The claim made refence to the protected conversations in support of an assertion that his dismissal was predetermined. The Employment Tribunal Judge decided that any reference to the protected discussions should be deleted from the claim form on the basis that they were pre-termination negotiations and any evidence about them was inadmissible as they were ‘protected conversations’ and ‘without prejudice’.  Mr Graham appealed to the Employment Appeal Tribunal (EAT).
One of the key points of interest to employers arising out of the appeal, is confirmation that it was not open for the employer to cherry pick parts of a discussion and label them as being ‘without prejudice’, while suggesting that other comments made by the employee during the same meeting were not subject to the ‘without prejudice’ rule. In addition, the EAT felt that the employer’s reliance on comments made by Mr Graham during the protected conversation in order to bring disciplinary proceedings against him, could be improper conduct which could also undermine the ‘protected’ nature of the conversation.

Protected conversations and the ‘without prejudice’ rule are useful tools to facilitate sensible discussions between employers and employees. Employers should however be mindful of their overall purpose and limitations and proceed with caution.
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