Can the privilege that covers protected conversations under section 111A ERA be waived?

No, held the Employment Appeal Tribunal in Faithorn Farrell Timms LLP v Bailey, giving the first appellate judgment on protected conversations.

Protected conversations are a mechanism whereby employers can enter into discussions concerning the proposed termination of an employee’s employment where there is no existing ‘dispute’ (i.e. that there are no ongoing formal disciplinary/capability issues). The pre-termination conversations and terms of settlement are protected in so far as they cannot be used as evidence in any subsequent employment tribunal claim for unfair dismissal. Protected conversations which are covered by section 111A of the ERA 1999 were implemented in July 2013 and have sought to bridge the gap to allow employees to enter into conversations with a view to agreeing the exit of an employee where there is no previous dispute. It is of course common ground that employers have always been able to rely upon without prejudice “privileged” communications, however this will only apply in the event of a genuine attempt to resolve an existing dispute. The aforementioned case demonstrates the difficulties an employer may encounter when there is an overlap between the without prejudice and section 111A rules.

The Claimant complained of constructive unfair dismissal and indirect sex discrimination in part as a result of the discussions she had initiated for the agreed termination of her employment. She referred to the protected conversation in both her grievance and ET1 (claim form) as did the Respondent when providing a response. It was not until the preparation of the full merits hearing that the Respondent sought to challenge the admissibility of evidence under both section 111A ERA and the without prejudice rules. The Tribunal ruled that the material in question was generally admissible, subject to redaction of specific references to any offer.

The Respondent appealed and the Claimant cross appealed on the basis that the Tribunal had failed to deal with the Claimant’s contentions that the Respondent could not rely on the without privilege or section 111A material given its improper behaviour and had ruled that in any event the parties had waived their privilege.

The Employment Appeal Tribunal (EAT) drew a distinction between the without prejudice rules and section 111A and noted most importantly that common law without prejudice rules will only apply when there is a dispute between the parties.