‘Without prejudice and protected conversations’; are they a shield or a sword?
‘Without prejudice and protected conversations’ are a hot topic. They allow parties to negotiate freely, without holding back for fear of weakening their position in litigation. A recent Employment Appeal Tribunal case considered how and when a party can waive its legal privilege.
The Employee was being terminated from their employment. Without prejudice and protected conversations occurred but were heated and conducted improperly by the Employer. The Employee brought allegations of improper conduct to the Employment Tribunal.
As the meeting occurred ‘without prejudice,’ the Employer argued that the conversations should not be put forward in proceedings. However, in responding to certain points of the Employee’s case, the Employer tried to rely on parts of the meetings by waiving privilege.
The Employment Appeal Tribunal held that the Employer could not use its legal privilege as a shield and a sword, and that the Employee is therefore entitled to have their allegation of improper conduct examined by the Tribunal. It is a worthy reminder to be careful when conducting without prejudice meetings, and to ensure that proper conduct is maintained at all times.
Preparation is key in advance of these meetings. Get in touch if you’d like a toolkit to aid progress in meetings of this nature.