When is a discussion “Without Prejudice”?

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The Business Directory defines this as a rather long statement, being: The binding rules of conduct meant to enforce justice and prescribe duty or obligation, and derived largely from custom or formal enactment by a ruler or legislature. These laws carry with them the power and authority of the enactor, and associated penalties for failure or refusal to obey. Law derives its legitimacy ultimately from universally accepted principles such as the essential justness of the rules, or the sovereign power of a parliament to enact them. Or more simply put : A Rule of Evidence. To have a “without prejudice” conversation there needs to be a general attempt to resolve a situation. It won’t be then admitted as evidence in Court, meaning that it is an “off the record conversation” but must be properly treated as such. It could be, for example, that an employee has been invited to attend a disciplinary or grievance meeting and you both know exactly what the issues are to be discussed. However, during the course of the meeting, either you as the employer or your employee asks the magic question “what is it you want?” or “this can be resolved if you offer me £5,000 to leave” Hey presto! A dispute has been created! There have been two recent Appeal decisions on this rule, being BNP Paribas v Mezzotero (2004) where is was found that there was no dispute existing when the employer proposed terms for the employee to exit the company following return to work after maternity leave. In a later case of Framlington Group v Barnestston (2007), it was wondered if the parties contemplated litigation prior to any discussion taking place at all! Warning: If you start a “without prejudice” discussion too early – without the Magic Question referred to above, it may be construed that there wasn’t a dispute in the first place and as such, the employee could refer to any conversation in a Tribunal. It would be wiser to see if the employee will ask the Magic Question first – then you have grounds that a dispute had been created without you creating it. Even a simple statement like “I’m going to sue if….” would be the start of a “without prejudice” discussion. But be warned – there are exceptions (as is usual in employment law!) Be careful of “unambiguous impropriety” meaning that the conversation may not be exploited to conceal wrongdoing, for example fraud or whistleblowing. For further advice and guidance on holding these type of discussions, call us now – we’re here to help – and do remember that no company that has followed Crispin Rhodes’ advice has ever successfully been taken to a tribunal or has ever fallen foul of any HR-related legal minefield.

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