Somewhat like the proverbial buses, we can wait months for cases involving privilege and then two come along at once!
A conversation or exchange of letters can take place on a 'without prejudice' basis. This means that both parties have effectively agreed not to disclose the content of those discussions. The purpose of this approach is to enable the parties to have an open dialogue to establish the position without fear of the exchange being used against them in any subsequent proceedings.
A recent employment case considered the use of the common law principle of 'without prejudice' and its interrelationship with the statutory concept of privilege as contained in the Employment Rights Act 1996. The common law principle only applies if there is already a dispute. The 1996 Act was amended to allow conversations prior to there being a dispute to be protected by privilege to enable an 'off the record' discussion to take place.
An employee and his employer had 'without prejudice' conversations to decide on his future. The employee was dismissed for gross misconduct and the employer tried to rely on the content of the without prejudice and privileged conversations to prove their case.
The facts are somewhat complex and involved arguments and counterarguments by both sides as to the extent to which all or part of the without prejudice conversations could subsequently be relied upon. The matter went to appeal from the Employment Tribunal. The case was sent back to the Employment Tribunal so that the Tribunal could properly consider certain aspects. However, it was accepted that without prejudice and privileged content could not be relied on to prove certain aspects of those conversations at the same time as arguing that other parts of the content should not be disclosed.
The case is a reminder of the fact that 'off the record' discussions in the context of an employment matter can be difficult and hard to categorise. The parties may already be at odds and it is vital for employers to be clear whether there is an existing dispute which 'without prejudice' conversations might protect as opposed to privileged discussions that may take place at an earlier stage.
Both parties also need to be clear, as negotiations progress, as to the extent to which, if at all, the protection of privilege and without prejudice might be waived.
Employers are reminded of the importance of taking comprehensive legal advice at the start of any such discussions to try to avoid these pitfalls.
To discuss this or any other employment related issue, contact us.