For the first time in EAT history, the Employment Appeal Tribunal looked at the issue of ‘protected conversations’ in Faithorn Farrell Timms v Bailey.
Protected conversations were introduced in 2013 under section 111A of the Employment Rights Act. Human resource experts define these types of conversations as those that are intended to enable an employer and an employee to have confidential discussions about ending employment, where a dispute concerning the termination is nonexistent. In the event there is an existing dispute, the legal without prejudice rule might very well apply. In layman’s terms, this means that if there is an attempt to settle a dispute, these statements and discussions cannot be used as evidence in court.
In Faithorn Farrell Timms v Bailey, a part-time secretary in a law firm claimed her employer made it abundantly clear in 2014 that she would no longer be able to work her part-time hours. To maintain her employment, she would have to transition to full time. Bailey did not want this and initiated settlement discussions with the firm under the protected conversation rule. In early 2015, without prejudice letters were sent by her solicitors which included proposals for a settlement. The employer’s letters in reply were not marked without prejudice.
The settlement discussions proved unsuccessful and Bailey raised a grievance, referring to the contents of her without prejudice letters. The law firm didn’t ever question the inclusion of these letters and actually referred to them in the outcome of the grievance procedure.
Bailey ended up resigning and claimed constructive dismissal and sexual discrimination.
While Bailey’s employer never questioned whether any of the reported discussions and letters were admissible as evidence, this question did come up at the preliminary tribunal hearing. The employment tribunal decided the documentation pointing to the protected conversation and any without prejudice letters were not inadmissible. At this point, both parties appealed to the EAT.
The EAT ruled that the protected conversation rule actually protected the content of the discussions, as well as the fact that these discussions ever took place. Furthermore, there wasn’t anything in the legislation that even permitted the employer and the employee to ‘waive’ this confidentiality.
At first, the EAT found the discussions did not have to be disclosed to any third party thanks to the without prejudice rules. Unfortunately, the employer referencing contents of the communications and not objecting to Bailey doing the same, was enough to show the employer had by implication given up this privilege.
HR experts feel that protected conversations have been used by employers time and time again, especially when the employer has concerns about employee performance and this particular case should be encouraging to employers since it shows that confidentiality does exist.
