A without prejudice conversation takes place for the purposes of settling a dispute between an employer and an employee. The contents of a without prejudice conversation are “privileged”, which means that if a valid without prejudice conversation takes place between the parties then the details of the conversation cannot be relied upon by either party on an “open” basis; therefore, the conversation cannot be revealed to a judge or a third party, nor can the employee rely on the conversation as evidence of a breach of contract, for example. There must be a pre-existing dispute in order for the without prejudice conversation to be privileged between the parties. If there is no pre-existing dispute then there will very likely be no privilege and, in an employment context, the conversation may well then be a “protected conversation”.
What can I expect to happen in a Without Prejudice Conversation?
Many without prejudice conversations take place without prior warning. A meeting request can go into the employee’s diary, usually titled as a “review” or “catch up”, only for the employee to arrive at the meeting and find HR to be present. This is not unlawful and is used by employers to keep the details of the meeting secret beforehand so that the employee does not seek legal advice or take other steps to its detriment. Sometimes an employer will notify the employee in advance that the meeting concerns a without prejudice conversation.
Whatever the circumstances, in a without prejudice meeting the employer is almost certainly meaning to end the employment relationship via a negotiated settlement, so it would assist the employee to seek legal advice in advance of that meeting if at all possible.
Broadly, there are two types of without prejudice meetings between employers and employees:
- Where there has already been a grievance or claim raised by the employee, or disciplinary, redundancy or performance raised by the employer.
- Where there has been, in the employee’s eyes at least, no formal dispute raised.
In respect of the first scenario, the employee will already have some knowledge of the issues that led to the “dispute” and so during the meeting the employee can, if they so wish, make points to the employer in reply from a position of knowledge of the events in question.
In respect of the second scenario, the employer will usually set out certain concerns at the outset and then rely upon those concerns as being a dispute. This part of the meeting will be classed as being “open”. There will then be a without prejudice part of the meeting that the employer relies upon as being an attempt to resolve the dispute it has just raised. In these circumstances, the employee will have very little knowledge of the facts arising from the dispute and it is usually best to say very little to the employer and then seek legal advice in respect of the offer.
The Offer
The employer will almost certainly make termination negotiations. This is financial offer to terminate the employee’s employment in a without prejudice meeting. It is very likely that the offer will be an opening offer and not the final offer. If the employee has not had an opportunity to take legal advice then the best response is to say nothing, take legal advice and then respond via a solicitor. If the employee makes a counter-offer during the first meeting then that is almost always the ceiling on the amount the employer will consider settling for. Therefore, it is vital for the employee not to peg themselves to a low figure if they have a good chance of securing more having sought advice.
After the meeting, the employee (via solicitors or themselves) can continue to negotiate on a without prejudice basis with the employer in an attempt to resolve the dispute, usually via termination of employment for compensation. How much compensation will depend entirely on the circumstances of the matter, including the salary of the employee.
When negotiating on a without prejudice basis, it is wise to head all written correspondence “without prejudice and subject to contract” and confirm verbally before any conversation that the other party is happy to speak on a without prejudice basis.
When is Without Prejudice Privilege Removed?
Between an employer and employee it is very rare for without prejudice privilege to be removed so that a party can rely on the content of a letter or conversation as part of their claim. In employment law, the two usual circumstances are that there was no pre-existing dispute (but these days these circumstances are usually capture by a protected conversation), or that the employer committed an act of discrimination or detriment to the employee during the meeting or via written correspondence. This is known as unambiguous impropriety and it is a very rare circumstance whereby a court or tribunal will find it has occurred. In the few cases that do exist, the employer has usually committed fraud or some other civil tort against the employee via the cloak of without prejudice correspondence.
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We are a team of high-level specialist settlement agreement solicitors. If you have been invited to without prejudice conversations & been offered a settlement agreement, the best thing you can do is contact us and one of our partners will contact you within one hour and arrange a free consultation to provide you with bespoke advice on your settlement agreement that is tailored to your personal circumstances.
About the author:
Will Burrows is a partner at Bloomsbury Square Employment Law and a highly experienced employment law specialist with 19 years of experience. He is known for his expertise in advising on UK’s high-profile employment cases and his ability to negotiate and mediate effectively. His areas of expertise include race discrimination, whistleblowing, and post-termination restrictions.
