Business Brief: The Perils of Without Prejudice Conversations

Nick Hine, partner at law firm Thomas Eggar, responds to your employment law questions:
A couple of days ago, my employer came up and said he wanted to have a without prejudice conversation with me. During this conversation he basically said that I didn't fit in the organisation anymore and offered me a package to go. If I were to challenge this and to make a claim against my employer, would I be allowed to bring this conversation up in a tribunal or any other court proceedings?
-- Name Withheld
The without prejudice rule was set up to encourage parties to settle disputes. Where there is a genuine dispute and parties meet to discuss the dispute on a without prejudice basis then the without prejudice rule means the contents of those discussions or correspondence cannot be disclosed.

This means that parties can talk freely about the dispute in question with the view of trying to resolve it without fear that those discussions or correspondence could be raised in any Court or Tribunal proceedings.

One of the conditions of such conversations is that there must be a genuine dispute which is being resolved. In the current situation you haven't said you are definitely in dispute with what your employer has said.

Therefore what your employer has proposed may not have the protection of without prejudice status you may be free from the limitations that implies.

Employers need to be careful when they have without prejudice conversations with their employees to ensure that the conditions for without prejudice protection are present.

Otherwise employees may be able to raise this in any subsequent Court or Tribunal proceedings.

In the current situation you should be able to therefore raise the offer as evidence of the fact that the employer wanted to get rid of you and had made you an offer to leave the organisation.