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Privacy, PHRs and (without) Prejudice

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[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]
Ought an Employment Tribunal hold a Pre-Hearing Review ('PHR') in private, if it considers the admissibility of ‘without prejudice’ communications that may be covered by privilege?

Yes, says the EAT in Eversheds LLP v Gray, overturning an Employment Judge’s decision to hold a PHR in public.

The Employment Tribunal Rules of Procedure provide exceptions to the rule that hearings other than Case Management Discussions ('CMDs') should be heard in public, Rule 16 (1) (b) permits hearings dealing with matters obtained in confidence to be held in private. The Respondent unsuccessfully applied for a PHR in private to deal with the admissibility of ‘without prejudice’ correspondence, and successfully appealed.

The EAT considered the scope of Rule 16 (1) (b) and, weighing the importance of public hearings and the Convention right to a fair hearing, held that it was in the interests of justice that parties in civil disputes could negotiate with a view to resolving disputes in the knowledge that those discussions would remain private and confidential, directing a private PHR.

The EAT also indicated, obiter, that a CMD, which is a private hearing, would not be the appropriate way to deal with disputes about the admissibility of ‘without prejudice’ communications.