Protected Conversations

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

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

No, held the EAT giving the first appellate judgment on 'protected conversations' in Faithorn Farrell Timms LLP v Bailey.

The Claimant, a secretary in a firm of surveyors, brought claims for constructive dismissal and indirect sex discrimination. An issue arose over admissibility of evidence under common law 'without prejudice' principles, and, for the first time on appeal, 'protected conversations' under s111A ERA for Unfair Dismissal claims.

The EAT noted that case law on 'without prejudice' discussions was not applicable to the 'protected conversations', the statute had to be read on its own terms. In this case, claims other than Unfair Dismissal not covered by s111A, the admissibility of evidence was determined under 'without prejudice' principles. Evidence may be admitted for a discrimination claim, but remain excluded regarding Unfair Dismissal.

The EAT held that the protection of s111A extends not just to the content of protected conversations, (e.g. an offer) but also the fact of them taking place, a protection broader than with 'without prejudice' discussions. Furthermore, an employer's internal discussions about a protected conversation (e.g. between management and HR advisers) could also be protected.

The Claimant's cross-appeal on waiver of privilege partially succeeded, the EAT holding that privilege had been waived under 'without prejudice' principles, but not under s111A, as that did not allow for waiver of privilege. The EAT noted that s111A can be dis-applied where there is 'improper behaviour', which gives employment tribunals a broader approach to admitting evidence that the limited 'unambiguous impropriety' required to admit in evidence without prejudice discussions. The issue of the applicability of s111A because of alleged improper behaviour was remitted for re-consideration.

The case is important for practitioners and illustrates the complicated scenarios that may arise when without prejudice and protected conversations overlap, along with issues over express or implied waiver of privilege for without prejudice discussions in proceedings.