Discussing Employment Termination on a Without Prejudice Basis

20 April 2017

If you are involved in a dispute with your employer, it can be useful to discuss the matter on a Without Prejudice basis with your employer.

What Does Without Prejudice Mean?

To speak on a Without Prejudice basis effectively means the conversation is off the record. It allows both parties of a dispute to speak freely without the concern that their words will be relied on in a Court or Employment Tribunal. This makes it a useful tool, as it allows people to discuss and negotiate their dispute without needing to involve the Courts or Tribunals.

Generally speaking, relevant correspondence is open and can be used as evidence in subsequent legal proceedings. However, Without Prejudice correspondence cannot normally be disclosed or relied upon in legal proceedings.

This method of communication is especially useful when discussing the terms on which an employee may be leaving the business. It will allow either party to specify the amount of financial compensation they would accept, without fear of being held to this amount at a later date in legal proceedings.

Without Prejudice Rule & Pre-Termination Negotiations

It’s important to note a distinction between the Without Prejudice Rule and Pre- termination Negotiations which is specified within s 111A of the Employment Rights Act 1996. These types of discussion are not mutually exclusive and may therefore run side by side. However, there are slight differences to be aware of.

Without Prejudice

  • There must be a dispute (there is no requirement for legal proceedings to have been issued) and
  • The Without Prejudice correspondence must be attempting in some way to settle that dispute
  • Both parties should be in agreement to have a conversation on a Without Prejudice basis.

Pre-Termination Negotiations

  • This covers correspondence to attempt to resolve an unfair dismissal dispute only. The conversations made under this section cannot then be referred to in any subsequent unfair dismissal proceedings.
  • In contrast to the Without Prejudice rule, there does not need to be an existing dispute, but the matter does need to be regarding a standard unfair dismissal matter.

The cloak of Without Prejudice and Pre-termination Negotiations can be lifted in certain circumstances which would mean the contents of the discussions could be used in legal proceedings, contrary to the general rule explained above.

There are a few occasions whereby the Court or Employment Tribunal have permitted disclosure of Without Prejudice and Pre-termination correspondence. For Without Prejudice correspondence the protection falls away where there has been fraud, undue influence or some other unambiguous impropriety such as perjury or blackmail. The protection in section 111A falls away where has been some improper behaviour in relation to the negotiations. Improper behaviour includes harassment, intimidation, bullying, physical assault, victimisation, discrimination and the use of undue pressure.

Employers will often seek to rely on the rules above when looking to provide an employee with an offer to leave the company. However it’s important to be aware of what correspondence will and will not be possible to rely on in legal proceedings.

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