An employer’s “without prejudice” discussion is always “off the record”. Or is it?
While employers will have policies and procedures to deal with disciplinary issues, grievances, and long-term absences, it is quite common for “difficult” workplace issues to arise which cannot readily be resolved through these procedures. One option for an employer is to discuss with an employee whether it could be mutually beneficial to agree a “parting of the ways” – that the employee’s employment ends on agreed terms, usually subject to a Settlement Agreement.
Traditionally, employers were cautious about this approach, given that an employee might argue that the suggestion that the employee leaves their employment was either discriminatory, or helped to establish a claim for constructive dismissal.
“Protected conversations” and “without prejudice discussions”
Since 2013, though, employers have been able to have a “protected conversation” or “pre-termination negotiation” with an employee, exploring the possibility of an agreed exit. Unless there is wrongdoing by an employer during that discussion, it will be “off the record” in any subsequent claim for unfair dismissal – and the employee cannot, therefore, rely on that discussion as being a breach of contract amounting to unfair dismissal. Crucially, however, the discussion will be on the record for any claim of discrimination, detriment, or “automatically unfair” dismissal, so the risk remains for employers that anything they say to the employee can be repeated at a tribunal hearing in support of those types of employee claims.
Employers might therefore also seek to argue that such a discussion is “without prejudice”. A without prejudice discussion, or proposal, arises where there is already a dispute between the parties, and the employer is making a genuine attempt to resolve the dispute. The discussion would then be “off the record” in any litigation about that dispute, a much wider exclusion than for a “protected conversation” which is unfair dismissal only. There is an exception, however, where the employer is guilty of unambiguous impropriety when making the proposal, for example, making threats or using discriminatory language – the discussion would then be admissible in evidence.
The scope of the without prejudice rule has recently been considered by the Employment Appeal Tribunal (“EAT”) in the case of Garrod v Riverside Management Ltd.
Background
Following a period of maternity leave, Mrs Garrod submitted a grievance alleging pregnancy/maternity discrimination, breach of her legal rights, bullying and harassment. A meeting was arranged with the employer’s external HR adviser who stated that he wished to have a without prejudice discussion and sought to explore the possibility of an agreed exit due to strained working relations. This did not result in any agreement, the grievance was investigated and rejected, and Mrs Garrod then resigned.
Claim and legal arguments
Mrs Garrod lodged ET claims of pregnancy discrimination and constructive dismissal. She sought to rely on and refer to the discussion at the meeting with the HR adviser. The employer argued this discussion was “without prejudice” and therefore inadmissible for any of the claims. A number of key issues were discussed:
- Mrs Garrod argued that the discussion could not be “without prejudice” as there was no existing dispute between the parties at the time. She relied on the earlier decision of BNP Paribas v Mezzotero which held that in deciding whether a dispute has arisen, it will not be enough, in itself, that an employee has raised a grievance, further consideration of the circumstances will be needed. The EAT upheld the employment judge’s finding in Mrs Garrod’s case that there was a live dispute between the parties which they would reasonably have considered may lead to litigation if not resolved. Mrs Garrod had in her grievance listed a number of legal claims and referred to the ACAS Early Conciliation process (a precursor to raising an ET claim) if matters were not resolved. The lodging of a grievance won’t always be enough to show there is a dispute, but in some cases it will be enough. Here, there was a live dispute between the parties.
- The EAT accepted that the discussion with the HR adviser was part of a genuine attempt to resolve the dispute, even though it would result in Mrs Garrod leaving her employment, which she did not want to do.
- Mrs Garrod argued that the proposal that she leave her employment was “unambiguous impropriety” because the employer’s reasons for wanting her to leave were discriminatory, so the discussion should be treated as admissible in evidence. The EAT agreed with the employment tribunal’s conclusion that the “unambiguous impropriety” exception should only apply in clear and exceptional cases, and the fact of making an offer for an agreed termination (which is a quite common solution to employment disputes) could not be said to be “unambiguous impropriety”. The tribunal had not made any criticisms of how the meeting had been conducted.
As such, the discussion, and the proposal of an agreed exit, were properly considered “without prejudice” and could not be referred to by Mrs Garrod as her claims progressed to further hearings.
The EAT also upheld an award of costs against Mrs Garrod for having given untrue evidence – claiming that she did not know what “without prejudice” meant, despite having a law degree, and making unfounded allegations against the HR adviser of “trickery, perjury and dishonesty”.
What does this mean for employers?
The term “without prejudice” is often used by employers without thinking about whether a discussion really is without prejudice. Simply to state that a discussion is “without prejudice” does not make it so. This case highlights the complex issues that arise in terms of whether there is an existing dispute, whether there is impropriety etc.
While the “without prejudice” rule, along with the “protected conversation” option, can give valuable protection to employers, the safest approach is to assume that whatever is said to an employee about a possible agreed exit will be able to be discussed at any subsequent ET hearing. Therefore, employers should not say anything that they would not be comfortable being discussed in front of an employment judge!
Our team are well versed in drafting scripts and communications for employers in such cases to ensure risks are minimised. Specialist advice in this complex area should be taken from our expert employment law team.
This update contains general information only and does not constitute legal or other professional advice.
Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012 / Connect with Douglas on LinkedIn
