Referring to ‘without prejudice’ protected conversations
Where there is a concern about a member of staff’s work in a charity and a senior manager wishes to tackle it, there can be a fear that something will be said that will lead to a claim of ‘constructive dismissal’ at an Employment Tribunal later. However, you can hold ‘without prejudice’ conversations in a genuine attempt to settle a problem, and these discussions are ‘privileged’: that is, they cannot be referred to or relied upon in proceedings. The recent case of Graham v Agilitas IT Solutions Ltd, explored how this applies in practice. Although it is about a company, the same ‘without prejudice’ principles are likely to be relevant to charities too.
Mr Graham was employed as a Sales Director. The CEO was instructed to hold ‘without prejudice’ conversations with Mr Graham because of concerns about his performance and his sales. During one particular meeting on 12 August 2015, Mr Graham claimed that the discussions were part of an attempt to get rid of him and terminate his possession of the shares he had in the company. He repeated these allegations to other members of the firm outside the meeting. These remarks, made in the meeting and other subsequent meetings were then relied upon by the company (as well as his remarks outside the meeting) to form the basis of the disciplinary case against him.
Mr Graham was dismissed and brought claims of unfair dismissal, wrongful dismissal and unlawful deduction of wages. The case turned on whether the parties had ‘waived’ the privilege of the ‘without prejudice’ conversations so that the conversations could be used as evidence.
A conversation is not ‘protected’ if the exclusion of evidence would ‘act as a cloak for unambiguous impropriety, for example, threatening behaviour or violence, perjury or blackmail.’ Mr Graham said that the CEO had used threatening words and demeanour during the course of the meeting which led Mr Graham to feel that he had no choice but to accept an alternative role. Mr Graham argued that it is improper for the company to seek to shield itself behind the ‘without prejudice’ protection in relation to what the CEO had said but at the same time to rely on what he, Mr Graham, had said in the meeting to justify disciplinary action.
The EAT decided that the company could not waive privilege on parts of the meeting and rely on privilege in respect of other parts of the meeting to shield its own conduct. The EAT held that whether the parties had in fact waived the right to rely on the ‘without prejudice’ rule should be remitted to the employment tribunal for consideration.
Employers, including charities, should be mindful that just by labelling a meeting as ‘without prejudice’ does not mean that it is definitely protected. Using the term ‘without prejudice’ is relevant but is not conclusive. There are other factors which will be considered to determine whether a conversation or meeting was indeed on a ‘without prejudice’ basis: for example, whether the parties contemplated or might reasonably have contemplated litigation if they could not agree the matters in dispute.