Graham v Agilitas IT Solutions Ltd UKEAT/0212/17/DA

Appeal against a Preliminary Hearing Judgment holding that a number of discussions during meetings held on a without prejudice basis between the Claimant and the CEO of the Respondent prior to the termination of his employment were protected pursuant to section 111A(1) Employment Rights Act 1996 and/or under the common law without prejudice rule. Appeal allowed and remitted to the same ET.

The CEO of the Respondent, Mr Lynn, had been instructed to hold without prejudice conversations with the Claimant because of concerns about his performance and his sales. During the course of the subsequent meeting on 12 August 2015 between the Claimant and Mr Lynn, a number of options were discussed about the Claimant's ongoing employment or its termination, including performance improvement and dismissal. A series of meetings (the 'relevant' meetings) followed in the course of the following 10 months that were the subject of the impugned Judgment and this appeal. The Claimant was subsequently dismissed, the Respondent concluding that the Claimant's conduct amounted to gross misconduct or, alternatively, that there had been an irretrievable breakdown in the necessary mutual relationship of trust and confidence. Significantly the Respondent relied, as one of the disciplinary allegations amounting to gross misconduct, on words spoken to Mr Lynn by the Claimant during the course of one of the relevant meetings. The Claimant brought claims of ordinary unfair dismissal, wrongful dismissal and claims based on unlawful deduction from wages to the ET. The EJ concluded that the conversations during the relevant meetings were protected both under section 111A and at common law and, therefore, not admissible both so far as unfair dismissal proceedings are concerned and so far as the proceedings as a whole are concerned. The Claimant appealed, alleging that the parties had waived the right to rely on the without prejudice rule.

The EAT allowed the appeal on 2 grounds. First there was nothing in the EJ's findings or in the reasoning and conclusions that explained how he approached the question whether the Respondent's reliance on what was said during the meeting of 12 August as part of its disciplinary case against the Claimant amounted to a waiver by conduct by the Respondent of privilege in that meeting. The second successful ground was that the disciplinary allegations which led to the Claimant's dismissal arose out of and were explained by the discussions the Claimant had with Mr Lynn during the 12 August meeting described above. The EAT accepted the Claimant's argument that it was improper for the Respondent to seek to shield itself behind section 111A(1) in relation to part of the discussion in that meeting but at the same time to rely on other parts of the meeting by way of disciplinary allegation.

Published: 23/11/2017 11:05

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