Open Navigation

Without Prejudice Discussions

Negotiating a favourable outcome

Settlement agreements are legally binding contracts pursuant to which an employee waives their right to bring an employment claim (or claims) against their employer, usually in exchange for a severance payment or other favourable term, such as “good leaver” status or retaining stock awards to which they may otherwise not be entitled

Settlement agreements are commonly used as a means of resolving disputes between an employer and employee. In many circumstances, settlement agreements arise as a result of disputes during redundancy, capability or disciplinary process. Whilst they can be made at any stage of the employment relationship, and do not always result in a termination of it, settlement agreements are often proposed as a way of ending the relationship by mutual agreement.

Both the employer and employee will have demands they wish to be met in the agreement, looking for the “best deal” they can achieve, so there can be considerable negotiation place before the final terms are agreed. These negotiations typically take place on a ‘without prejudice’ basis. In a nutshell, this means that if negotiations break down, discussions around the settlement agreement (and indeed often the fact it was proposed) cannot be referred to in in litigation before an Employment Tribunal. However, there is a significant caveat to this rule: the ‘without prejudice’ doctrine only applies if there is an existing dispute between the employer and employee and the discussions are a genuine attempt to resolve that existing dispute. No dispute = no such protection.

Whether the circumstances amount to a “dispute” depend on the individual circumstances. For example, if there is no existing dispute, the fact that an employer states that a conversation, for example about poor performance and potential exit, is “without prejudice” does not make it so. However, if there is a genuine dispute, such as a breakdown in the relationship arising from discussions concerning poor performance, the conversation may well be protected. It can be a very fine line. Even, the fact an employee has raised a grievance may not always amount to a dispute of itself. It will depend on a number of factors including the contents of the grievance and whether the grievance would be upheld by the employer. The mere labelling of a conversation or document as “without prejudice” will certainly not make it so alone (although without prejudice documents should always be marked as such!)

News

COVID-19 Legal Right to Work Check Concessions End on 20 June 2021

The UK Home Office has provided employers with latitude in meeting Legal Right to Work (LRTW) Compliance requirements during the COVID-19 pandemic through a series of concessions. One such concession enables employers to conduct right to work checks remotely, thus not requiring employees or HR personnel to be physically present in an office for the…

Read More
Passport

Is it legal to use coronavirus passports in the UK?

The vaccination programme has been very successful, with over 30 million adults receiving their first inoculations and over 4 million, their second. Until the last few months, the UK government said that requiring coronavirus passports in order to access certain services and foreign travel was discriminatory and therefore would not be adopted.  This view now…

Read More
Immigration Advice based upon the MAC Report

Migration Advisory Committee: Call for Evidence

The Migration Advisory Committee (MAC) is a body of independent expert economists retained by Government to advise on immigration policy reform in the context of prevailing labour market and UK business needs. The MAC undertakes extensive labour market and stakeholder research before publishing recommendations for change following commissions from the Home Office. A MAC review…

Read More