Without Prejudice Discussion & Protected Conversations

Be careful what you say during ‘without prejudice discussions’ and ‘protected conversations’

warns Kerseys Solicitors LLP of Ipswich and Colchester.

In a recent case, the EAT said that it’s: “all or nothing” when it comes to ‘without prejudice discussions’ and ‘protected conversations’.

An example of ‘without prejudice discussion’ and ‘protected conversation’

G worked for A as its Sales Director. A had some concerns with G’s performance so it held a number of meetings with him. A categorised these meetings as ‘without prejudice discussions’ and ‘protected conversations’, which meant that the meetings were ‘privileged’ and effectively ‘off-the-record’. As such, the content of the meetings could not be relied on by either party in a legal case. But, the protection afforded to such meetings can be lost if one of the parties does something to ‘waive privilege’.

A subsequently decided to discipline G for comments that he had made to colleagues. To substantiate its allegations A relied on statements that G had made during one of their meetings. In response G raised a grievance in which he alleged that A had acted inappropriately and in a bullying manner towards him. To back up his allegations G relied on comments that A had made during the same meeting. A argued that the meeting was ‘privileged’ so G could not rely on any comments made during it.

The Result

The EAT said that A could not rely on parts of a ‘without prejudice discussion’, or ‘protected conversation’ whilst at the same time using the rules as a shield to protect comments it had made. If privilege had been waived, then it was waived in respect to the whole of the meeting, not just a part of it.

If you are thinking about having a ‘without prejudice discussion’ and ‘protected conversation’ then we at Kerseys can help you prepare properly for it.

Employment Law