Cherry-Picking When the ‘Without Prejudice' Principle Applies?

In Graham v Agilitas IT Solutions Ltd (UKEAT/0212/17), the Employment Appeal Tribunal (EAT) considered whether an employer could cherry-pick which parts of a meeting were covered by the “without prejudice” privilege.

Mr Graham was a sales director at Agilitas IT Solutions (Agilitas). Concerns arose regarding his performance and Agilitas held a series of meetings to discuss various options with him, including dismissal. These meetings were labelled “without prejudice”. Following a disciplinary process, Mr Graham was dismissed. One of the allegations against him related to something he had said during the “without prejudice” meetings. He brought claims against Agilitas and, in his claim form, referenced some parts of the “without prejudice” meetings. A preliminary question arose as to whether such references could be admitted as evidence. 

The EAT held that, in principle, the meetings were covered by the “without prejudice” privilege, as the possibility of future litigation had been contemplated by both parties since the start of the meetings. However, Agilitas could not pick and choose which parts of the meetings were covered by such privilege and which parts were not. Agilitas had relied on some parts of the meetings in its disciplinary proceedings against Mr Graham and now sought to argue that he was prevented by the “without prejudice” privilege from relying on other parts of the same meetings in his claims against Agilitas.

The EAT remitted the case to the Employment Tribunal to consider whether Agilitas’ reliance on some parts of the meetings in its disciplinary proceedings against Mr Graham meant that it had waived privilege over all of the meetings and/or whether such behaviour amounted to improper conduct.