The ‘Without Prejudice’ Rule - For the record – it may not be ‘off the record’
Most employers will at some point have faced a problematic employee relationship, often triggered by grievance complaints, disciplinaries, capability issues or sickness absence.
Sometimes the easiest and quickest 'solution' to the problem is perceived to be a negotiated departure on 'amicable' terms.
Such negotiations are often conducted under the guise of 'without prejudice' discussions. However this approach is not foolproof – in fact the protection afforded by the 'without prejudice' rule only applies in very limited circumstances.
When employers conduct these discussions, there is a real possibility that the protection will not apply and therefore the content of the discussion or communication could be used against the employer in Tribunal litigation.
Further, be wary of legal guidance from the internet – the 'protected conversation' principle that applies in Great Britain does not apply in Northern Ireland.
The 'Without Prejudice' Rule
The 'without prejudice' rule is a rule of evidence that protects the contents of 'without prejudice' communications from being disclosed in related litigation.
The purpose behind the rule is to encourage parties to resolve their disputes by agreement, rather than resolution by lengthy and costly litigation, without fear that those attempts will be used as a 'fishing exercise' against a party in future litigation.
For the rule to apply, the below criteria must be satisfied that:
- there must be an existing dispute between the parties at the time the communication is made; and
- the communication must be a genuine attempt to settle that dispute.
The main issue employers face is whether there is in fact an existing dispute between the parties.
Caselaw dictates that employers cannot try to 'engineer' a termination of employment under the pretence of a 'without prejudice' conversation, particularly when no dispute exists in relation to a potential termination.
Even where the employee raises a grievance, it does not necessarily follow that the grievance amounts to a dispute between the parties that would prevent disclosure of a discussion seeking to terminate the employment.1
Does the employee understand the rule?
Even if the above criteria can be satisfied, there are still a number of hurdles to overcome.
For example, where the parties are not legally represented, a Tribunal may query whether the employee genuinely understood the concept of this complex rule of evidence to a level that they could knowingly agree to enter into such discussions.
Given the inequality of bargaining power between the employer and employee, Tribunals will be slow to determine that an unrepresented employee truly understood this concept.
In BNP v Mezzotero, the employee was given no information before the meeting as to what was to be discussed; the employer simply stated that they wished to have a 'without prejudice' discussion to allow them to talk 'freely'. The employee, who was unrepresented, agreed to the meeting, simply to 'see what they had to say'.
It was held to have been:
'unrealistic…to refer to the parties as expressly agreeing…to speak without prejudice…given the unequal relationship of the parties, the vulnerable position of the [employee] in such a meeting as this, and the fact that the suggestion was made by the respondents only once the meeting had begun'.
Locally, the NI Court of Appeal stated that 'the concept of without prejudice discussion is a complex and challenging one even for lawyers and the judiciary'2. Therefore it is critical to evidence that the concept has been clearly (and accurately) explained to the employee before the discussion takes place and that the employee has unambiguously agreed to enter into such discussions.
'Protected Conversations' in GB
'Protected conversations' are distinct from 'without prejudice' conversations and do not require there to be a dispute between the parties for such a discussion to take place.
They are predicated on a statutory framework which allows 'pre-termination' negotiations to be inadmissible as evidence in the employment tribunal in Great Britain, subject to a number of exceptions.
Employers in Northern Ireland should note that the statutory framework on protected conversations does not apply in NI. Nor is it likely that similar legislation will be introduced in NI in the foreseeable future.
With the 'without prejudice' rule only applying in limited circumstances, coupled with no concept of protected conversations applying in Northern Ireland, NI employers must tread very carefully when seeking to initiate confidential negotiations with an employee, irrespective of how well-intended those negotiations may be.
Reliance on the 'without prejudice' rule in the wrong circumstances can result in the Tribunal reaching adverse inferences as to the employer's intentions in the lead up to the termination of an employee's employment.
While issues with employees in the workplace can cause a great deal of frustration and emotional strain on all parties involved, it is important to have confidence in your organisation's policies and procedures to address and resolve grievances, conduct, capability and sickness absence.
Sole reliance on a complex rule of evidence which applies only in very limited circumstances is a dangerous stance to adopt.
We strongly recommend that you seek legal advice before initiating an 'off-the-record'/'without prejudice' conversation.
For further information on this topic, please contact Jill Gracey, Associate, or any member of the Employment & Incentives Belfast Team.
Date published: 4 March 2019
1 BNP Paribas v Mezzotero  IRLR 508
2 McKinstry v Moy Park & Others  NICA 12