EAT Finds You Cannot Cherry Pick From Without Prejudice Conversations

The Employment Appeal Tribunal (EAT), in the recent case of Graham v. Agilitas IT Solutions Ltd. (Agilitas), ruled that an employer cannot rely on parts of a without prejudice conversation held in accordance with s.111A of the Employment Rights Act 1996 (ERA) and/or the "common law" without prejudice rule, whilst at the same time seeking to use the without prejudice rule as a shield in reference to that same conversation. S.111A of the ERA permits discussions between an employer and an employee with a view to terminating employment on agreed terms to remain confidential and inadmissible in proceedings before a tribunal for unfair dismissal.

Mr Graham was facing termination. During pre-termination negotiations, which Agilitas described at the time as without prejudice under s.111A of the ERA, Mr Graham made comments which Agilitas then later used as part of a disciplinary action against him when pre-termination negotiations fell apart.