‘Without prejudice’ is a much abused term. Discussions and documents which have been labelled ‘without prejudice’ usually cannot be shown to a court or employment tribunal as long as the label has been applied appropriately.
It can be used only where there is a dispute and the conversation is designed to promote settlement of that dispute. It cannot be used to hide messages such as ‘you will be dismissed at the disciplinary meeting’ or ‘you will not pass the performance monitoring’.
Frequently employers use the label in this way and are surprised when messages they had hoped were ‘off the record’ are quoted back to them in support of an unfair dismissal claim.
It is tempting to make any offer on a without prejudice basis, particularly the financial details. That said, there is often no reason why the offer should not be made on an open basis. If an employer is presenting the employee with a genuine choice, it has nothing to be ashamed of and need not hide that choice from the tribunals.
The key lesson here is not to be lulled into a false sense of security by the ‘without prejudice’ label. By all means label an offer ‘without prejudice’ but draft it as though it was to be placed before a tribunal. If the employee then questions whether the ‘without prejudice’ label was appropriate, there will be little to fear.
Finally, it is worth making the point that it is far easier to reach a deal with an employee whose sense of dignity has been preserved than one who has been forced into a corner. The skill is to make an unwanted employee opt to leave of their own accord, rather than to tell them they have to leave and then throw money at them until they do!
For further information please contact Daniel Issac at: daniel.isaac@withersworldwide.com
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