In a case concerning a Mr Graham, a sales director for Agilitas IT Solutions, the EAT has ruled that employers cannot selectively use parts of ‘without prejudice’ conversations to bring action against their staff unless they are prepared to open the entire conversation up to further scrutiny.
Over a number of months until his dismissal in August 2016, several conversations were initiated by the employer on a “without prejudice” basis relating to performance. When the employer decided to discipline and ultimately dismiss Mr Graham on the basis of these conversations, the EAT said that it had to be prepared to share their contents during subsequent legal action, especially as Mr Graham alleged bullying had taken place during the meetings.
Mr Graham initially brought unfair and wrongful dismissal claims to an Employment Tribunal, stating that his former employer had bullied him. However the Tribunal did not consider the without prejudice evidence from either party, despite the fact that the alleged bullying took place within these conversations. Upon appeal, the EAT found that Agilitas could not rely on privilege of without prejudice for parts of the discussions it held with Graham, without relying on the entirety of the conversations. The without prejudice privilege could not be used to shield evidence of alleged bullying behaviour.
