Employers, this is how to have a without prejudice conversation

It’s an important part of employment law, so as a HR professional, it pays to get to grips with these discussions. Here, we’ll unpack some scenarios which might require a without prejudice conversation and best practices for having one with an employee.

Wellbeing at Work
Company Culture
Talent & Hiring

Jan 18, 2024 ⋅ 6 min read

You might have heard the term ‘without prejudice conversation’ bandied around, but unless you’ve been part of one, you might not know what it means. It’s an important part of employment law, so as a HR professional, it pays to get to grips with these discussions. Here, we’ll unpack some scenarios which might require a without prejudice conversation and best practices for having one with an employee.

What is a without prejudice conversation? 

Without prejudice conversations allow both parties in a dispute to have an honest discussion without fear that what they’ve said will later be used against them. Put simply, these conversations are ‘off the record’. The aim is to encourage both people to settle a dispute without resorting to litigation, which can be expensive and time consuming.

Without prejudice conversations, although similar, should not be confused with protected conversations. The latter only provides protection from an unfair dismissal claim at an Employment Tribunal, and things like claims of discrimination are excluded from this.

When would a without prejudice conversation happen?

There are a number of circumstances where a without prejudice conversation would happen. For example, if a manager is unhappy with an employee’s performance, they might invite the person to have a without prejudice conversation so they can negotiate an exit package. Similarly, if an employee wants to raise a grievance because they believe they’ve been harassed by a colleague, they might have a without prejudice conversation before the complaint is properly investigated or taken to court.

What is the without prejudice rule? 

The rules of a without prejudice conversation stipulate that:

  • Parties involved in the discussion will not be able to rely on what was said as evidence in future litigation.
  • It only applies where there is an existing dispute between the parties.
  • The conversation must be a genuine attempt by both sides to resolve the dispute.
  • If you simply say that a conversation is “without prejudice”, this won’t necessarily guarantee that the correspondence will be protected.
  • The without prejudice rule cannot be used to cover up or hide any ‘unambiguous impropriety’ (i.e. bribery, fraud, threats or violence).

For more information or to seek legal advice, we recommend reading this Warner Goodman article on the topic.

Tips for having these conversations 

If either you or an employee wants to open a without prejudice conversation, here’s how to prepare yourself for the meeting:

Be organised

It’s a good idea to set out the issues in writing beforehand, to help you stay on track during the meeting without going off on a tangent. Be clear and concise – don’t embellish anything and stick to noting down facts not feelings.

Stay compliant

Make sure the employee understands the purpose of the meeting before you go into it. If you fail to do this, there’s a danger that they could refer back to the conversation in the future if they didn’t fully agree to it being on a without prejudice basis. And make sure the discussion is 100% legal – for example, you’re not allowed to use a without prejudice conversation to offer an employee a financial incentive to leave your company.

Treat employees fairly 

A without prejudice conversation is a time for all parties to have their say and be allowed adequate time and space to do so. Don’t put pressure on an employee or bully them into accepting your offer or agreeing with your point of view, and try not to let any emotions get the better of you. Stay calm and professional throughout. 

Take notes and put the final agreement in writing

Just because the conversation can’t be relied on as evidence in future processes doesn’t mean it shouldn’t be recorded. Once you have the consent of all parties involved, it’s always sensible to record the discussion so everyone’s on the same page. This is especially true if you come to a settlement agreement – it must be put in writing for it to be legal. ACAS has a settlement agreement template for a legal contract you can use.

Manage expectations

Try not to predict what will happen during the discussion, as you can never know how the other party is truly feeling or how they’ll react to your points. Go into the conversation with an open mind and hope for the best. For more tips on having difficult conversations at work, we’ve written a guide for managers preparing for performance appraisals.

If you’re planning to have a without prejudice conversation with an employee, it’s best to clear things with a legal professional before proceeding. This is particularly the case if you’re planning for any form of settlement agreement, just to make sure you’re not putting your company (or your job) at risk.

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