Without prejudice and protected conversations
When and how to use it in negotiations with your employer
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How to deal with Without Prejudice meetings
Has your employer sought to have a “without prejudice” conversation with you or perhaps a “protected conversation” or even an “off the record” chat? What do these terms mean and how can you best deal with this situation?
Without Prejudice
The “without prejudice” rule means that any communications made in a genuine attempt to settle a pre-existing dispute cannot be referred to in later court or employment tribunal proceedings between the parties. This is to enable parties to explore settlement without affecting their prospects in the underlying dispute. If a conversation is genuinely “without prejudice” then this protection will only be set aside in cases of unambiguous impropriety, which is a difficult test to meet and includes things such as blackmail and perjury. One point to be aware of though is that, in an employment context, employers often try to use “without prejudice” when there is no pre-existing dispute meaning the “without prejudice” rule will not apply. You can then refer to the conversation at a Tribunal, which can weaken your employers’ negotiating position.
What to do when your employer asks for a Without prejudice conversation
It can be extremely intimidating and stressful when your employer asks to have a “without prejudice” or protected conversation. Your first instinct may well be to say no. Unfortunately, this will not make the issues your employer wants to raise with you go away. You are best to agree to this conversation taking place as your employer is most likely to make a mistake and say something wrong in this conversation if you agree to it straight away.
All you need to do in this conversation is listen to what your employer has to say and take careful note of what is said either in the meeting or immediately afterwards. It is best not to record this meeting without your employer’s knowledge. Your employer may ask you to respond in the meeting but you can just make it clear that it is a lot to take in and you will need to go away and consider it.
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These types of conversations generally only happen if the employer wants to pay you a sum of money to leave employment. It is a great opportunity to negotiate a departure that you are happy with. The law around protected conversations and “without prejudice” is complex and employers often get it wrong, which can be used to your advantage in negotiations. It is always best to have expert advice to help you achieve the best outcome for you. All of our lawyers have over 15 years of employment law experience and are partners in the firm. We have all dealt with these kinds of conversations countless times and can help you navigate your way through to an excellent result.
You will receive a swift and efficient personal service from an experienced practitioner who understands what you are going through.
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