EAT PRACTICE AND PROCEDURE
The appeal concerns a challenge to a Preliminary Hearing Judgment holding that a number of discussions during meetings held on a without prejudice basis between the Appellant and the CEO of the Respondent prior to the termination of his employment were protected pursuant to section 111A(1) Employment Rights Act 1996 and/or under the common law without prejudice rule.
The Tribunal correctly applied the relevant legal principles to the facts found and was entitled to reach the conclusions reached in relation to the relevant meetings, save in relation to two points.
Although squarely raised before it, the Tribunal did not consider whether there was a waiver of privilege by reason of the Respondent’s conduct in relying on part of a conversation during a meeting on 12 August 2015 as a disciplinary allegation against the Appellant (ultimately leading to his dismissal) while at the same time contending that the meeting was covered by without prejudice privilege. The same point was not considered in the context of an argument that there was improper conduct by the Respondent within the meaning of section 111A(4) but the Tribunal could not be criticised in this respect because the argument was not advanced below. In circumstances where the same or very similar argument would be reconsidered by the Tribunal afresh in respect of the waiver point, the Appellant would exceptionally be permitted to raise this point as well.
Citations:
[2017] UKEAT 0212 – 17 – 1210
Links:
Jurisdiction:
England and Wales
Employment
Updated: 02 April 2022; Ref: scu.601903
