‘Without prejudice’ is a legal principle. It prevents communications between you and your employee being raised as evidence in a later court claim or employment tribunal. If a working relationship between you and an employee is not proving successful, a ‘without prejudice’ conversation could help. By reaching a termination agreement, you will eliminate a potential claim for unfair dismissal. Tread carefully though. Take sensible precautions and consider expert HR advice before taking any action. Proceeding with the correct procedures will make sure that you don’t expose your company to any unnecessary risk.
See below our top tips for employers holding without prejudice conversations.
When to Hold Without Prejudice Conversations
Without prejudice communications can only be used when there is a genuine dispute in existence between an employer and employee. Therefore, it is not appropriate for you to start ‘without prejudice’ communications with an employee simply because they have raised a grievance. Raising a grievance does not mean that there is a dispute between the parties. This would restrict an employer and employee from having confidential, fact-finding discussions about options before a matter escalates into a dispute.
Without prejudice conversations are typically used for pre-termination agreements. Often, negotiations take place when either you or your employee want to settle a dispute, so that the employee can leave the company easily and quickly.
Without prejudice conversations can be used by employers even where there are allegations of discrimination or whistleblowing, but again, these will only be off the record if there is a genuine dispute between the parties.
Be aware that that if you initiate without prejudice discussions with no dispute, you may breach the ‘trust and confidence’ that should exist in every employer/employee relationship. In turn, this could lead to an employee raising a grievance, or worse, a constructive dismissal claim.
Make Without Prejudice Matters Legal
Make sure all without prejudice matters remain compliant of employment law. Without prejudice principles only covers situations where there has been an existing dispute. Employers cannot simply adopt ‘without prejudice’ conversations to offer an employee a financial reward for leaving the company. There must already be an employment dispute, which you have already tried to settle.
Be careful to ensure the conversation really does come within the without prejudice principle. Simply announcing that a meeting is without prejudice or labelling the communications as such is not enough to stop your employee from using it in a later court case or tribunal if you have not truly met all the conditions of the without prejudice principle.
Furthermore, if either party engages in improper behaviour during the conversation, then negotiations will lose their confidential status, and can be used as evidence by a court or tribunal.
How to Hold Without Prejudice Meetings
Employers should not pressurise an employee into agreeing to anything. Treat discussions as open conversations with the aim of reaching an amicable agreement. Clearly set out all the terms of any offer from the start and treat your employee fairly and respectfully. Employers should under no account indicate during a protected conversation, that dismissal will be the outcome if the offer is rejected.
Employees need to be given a reasonable time to consider any offer. ACAS (the Advisory, Conciliation and Arbitration Service) recommends a ten-day period. Offers cannot be reduced in return for a quicker employee decision.
Record ‘Off the Record’ Conversations
Without prejudice conversations and statements cannot later be bought up as part of legal proceedings, hence are often known as ‘off the record’. Make sure you clearly mark all written and verbal communications as ‘without prejudice’. Record notes from ‘information communication’ meetings in writing or through formal minutes.
Employees don’t have a legal obligation to attend without prejudice meetings. Bear in mind that this cannot be held against them at a later date either at work or in tribunal.
Exit Settlement Agreements
Once an employment exit settlement offer is acceptable, any agreement should be put in writing. Specify exactly what the complaint or dispute relates to, as generic settlement agreements are not classed as legal.
What is the Difference Between a ‘Protected Conversation’ and a ‘Without Prejudice’ Discussion?
The concept of protected and without prejudice conversations is mostly the same, but there are subtle differences. Both conversations allow an employer to enter into confidential ‘off-the record’ conversations with an employee. And both entitle you to initiate discussions to bring an employment relationship to an end. So, what is the difference?
- ‘Protected conversations’ should be held if there is no existing dispute.
- ‘Without prejudice’ discussions are conducted if there is an existing dispute.
Protected Conversations
In July 2013, the Government introduced new statutory rules to help pre-termination settlement discussions. This is known as a ‘protected conversation’ and is covered under the Employment Rights Act. Protected conversations usually concern an employee’s conduct or capability. In most cases, they cannot be used for claims of discrimination, breach of contract, unfair dismissal or health and safety matters. For example, if a discussion needs to take place in relation to exiting an employee on long-term sickness absence, taking into account the possibility of a disability discrimination claim, the without prejudice principle has an advantage over a protected conversation.
All conversations need to fall within somewhat narrow definitions and could indeed be admitted as evidence in an employment tribunal claim. Therefore, you should not be under the impression that you are covered when entering into such conversations, so hold them with caution.
Without prejudice conversations should be open to allow both parties to discuss a possible settlement. However, without HR expertise and knowledge, there are still risks associated that could see your company in receipt of an unfair dismissal claim or employment tribunal.
Therefore, our biggest ‘without prejudice’ tip today is to make sure you understand all the facts surrounding this topic in order to avoid any costly claims on your company.
We can provide support for without prejudice conversations, discipline and grievance management, and redundancy management. In reviewing your specific circumstances, we can provide you with bespoke and practical HR advice. For a non-obligation chat, call The HR Team in Poole on: 01202 701 414 or email at: info@thehrteam.co.uk
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