When is a protected conversation truly protected?

The Employment Appeal Tribunal has ruled that the strict privacy rules that prevent employment tribunals being advised of “protected conversations”, apply to the fact that they have taken place as to the content. The new status for communication between parties was introduced by s 111A of the Employment Rights Act 1996, and applies only to complaints of unfair dismissal.

The provision was intended to make it easier for employers to discuss the termination of employment with an employee without those discussions prejudicing a complaint of unfair dismissal if agreement could not be reached.

In Faithorn Farrell Timms LLP v Bailey (UKEAT/0025/16/RN) Judge Eady confirmed the absolute privilege conferred by statute on such conversations, with one exception. The exception is where a party can be shown to have behaved “improperly”, for example by making threats, or other similar behaviour. The protection extends to an employer’s prior internal discussions, for example between managers and HR,

The claimant, Ms Bailey, was a secretary employed by a firm of surveyors. She brought claims of constructive dismissal and indirect sex discrimination. There had been both “protected conversations”, and “without prejudice” communications. The judge noted that the “without prejudice” privilege would only attach to communications that represented a genuine attempt to resolve matters without further litigation, and could be waived by the parties.

The case is important to those dealing with the right to have wholly private discussions with a view to an amicable settlement.

A guide to the s 111A provisions can be found by clicking here.