Can a Respondent employer rely on parts of a ‘without prejudice discussion’, or protected conversation, whilst at the same time using the rules as a shield?
No, held the EAT in Graham v Agilitas IT Solutions Ltd.
The Claimant was facing termination of employment. During talks which the Respondent characterised as being without prejudice and/or protected under s111A of the Employment Rights Act 1996, the Claimant made comments which the Respondent subsequently used to form the basis of disciplinary action. The Claimant alleged improper conduct/unambiguous impropriety by the Respondent in the form of bullying and threatening behaviours in the same meeting.
The EAT held that the Respondent could not waive privilege on parts of the meeting and rely on privilege in relation to other parts to shield its conduct.
The Claimant was entitled to have the employment tribunal examine the improper conduct. The case has been remitted.