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Is an off the record discussion always without prejudice?

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In the case of Graham v Agilitas IT Solutions Ltd, the Employment Appeal Tribunal had to consider whether a number of discussions held between Mr Graham and his employer prior to the termination of his employment had the protection of the common law without prejudice rule or s111A of the Employment Rights Act (ERA) 1996.

At a previous Preliminary Hearing, an Employment Judge held these discussions did have this protection but Mr Graham disagreed and appealed.

Mr Graham was employed as a Sales Director for Agilitas IT Solutions for approximately 3 years. Prior to his dismissal, Mr Graham had a without prejudice meeting with the Company’s CEO because of concerns about his performance. A number of options were discussed such as a performance improvement plan and termination. A series of without prejudice meetings were held over the next 10 months.

It is these meetings that Mr Graham argues do not have the benefit of s111A ERA 1996 or the common law without prejudice rule, because of the allegation that comments were made to the Company which were subsequently used as part of the disciplinary process.

The Honourable Mrs Justice Simler, sitting alone in the Employment Appeal Tribunal, stated the Employment Judge had correctly applied the relevant legal principles to the facts, but had concerns about whether these meetings had the protection of s111A ERA 1996 or without prejudice privilege.

A key question was whether the parties reasonably contemplated a dispute. It was clear Agilitas IT Solutions had issues about Mr Graham’s performance and therefore Mr Graham must have reasonably contemplated a dispute when he had the without prejudice discussions with the Company.

However, it was questionable whether every single meeting could have the protection of s111A ERA 1996 or without prejudice.

The case has been remitted back to the Employment Tribunal to reconsider which meetings can be deemed without prejudice and which meetings can be used by Mr Graham as evidence as part of his unfair dismissal claim.

The case is not a landmark decision but is a useful reminder to businesses who issue or discuss Settlement Agreements with their staff that it is imperative to get the process right. Businesses should therefore ensure they correctly make use of the without prejudice rule and s111A ERA 1996.

If you require any advice or assistance, please do not hesitate to contact Sally Morris at or on 01905 610410.