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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.

'Without prejudice discussions' and 'protected conversations'

What are ‘without prejudice discussions’ and ‘protected conversations’?

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
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