The claimant was the Northern Ireland Area Manager for the respondent’s funeral business. The claimant was suspended pending further investigation but was subsequently invited to a meeting in Scotland. The tribunal were satisfied that the claimant had probably been told that this was to be a ‘without prejudice meeting’.  The claimant decided to covertly record the meeting at which discussions were held concerning difficulties the Northern Ireland branch of the business was facing.

The tribunal did, however, ultimately hold that the claimant may well not have appreciated the legal significance of the meeting and that its contents should never be alluded to in the future. The tribunal came to the view that the meeting was not cloaked by ‘without prejudice’, primarily because the claimant had never actually agreed, with knowledge, to the meeting being held as such. The case of McKinstry v Moy Park and Others [2015] NICA 12 was examined in detail by the tribunal and that decision collates all of the pertinent points arising from the previous relevant authorities. However, all of the claims in the case were ultimately dismissed the tribunal found that the dismissal was not unfair in accordance with equity and the substantial merits of the case - there had been serious failings in his performance.

Practical Lessons

When an issue as to ‘without prejudice’ privilege arises, the tribunal noted that one the key issues is whether the claimant understood what without prejudice actually meant. It is clear from the documents presented to the tribunal that the respondent’s managers in Great Britain were familiar with the concept of “protected conversations” and indeed referred to them.  These were introduced in Great Britain in 2013 to make it easier for employers to have risk-free discussions with their employees about possible termination of employment when things aren’t exactly working out.

Protected conversations, however, do not exist in Northern Ireland. With regards to ‘without prejudice’ privilege the McKinstry case sets out that what is required is ‘clear evidence that the meaning of “without prejudice” communications was properly explained to the [employee].’ Employers, therefore, have a positive obligation to fully inform the employee of the legal ramifications of a ‘without prejudice’ meeting such as in this case or else risk its contents being relied on later.

This third case review was written by John Taggart BL. NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/