Leading employment lawyers have warned that off-the-record discussions with
employees could end up paraded in court unless organisations tighten up their
management and disciplinary procedures.
The warning follows a sex discrimination and victimisation tribunal that
allowed the applicant to submit details of ‘without prejudice’ discussions with
Jonathon Chamberlain, partner with law firm Wragge & Co, said most
managers believe ‘without prejudice’ written or oral negotiations will not be
made public in court at a later date.
"It’s a very common device, if we want to get rid of an employee that
we are not happy with, for whatever reason, but know that it could cost money.
We call them in and say, ‘this is not working out, but, without prejudice, this
is what we can offer you to go’," Chamberlain said.
"That’s common. Employers want to take the short route and most people
will go if you pay them enough money. It now appears that much of what makes up
current practice is wrong."
This creates a risk that managers could make admissions in meetings that
might later end up in court, Chamberlain said.
"There is huge danger," he added. "Material thought to be
‘off-the-record’ could end up in court. If you say ‘we know our processes are
not right’ in a without prejudice conversation, then you could be sunk if it
ends in a court case."
The danger was demonstrated by the sex discrimination case last week, which
heard evidence from a ‘without prejudice’ meeting regarding the termination of
employment. The legal team representing the employer, the BNP Paribas bank,
appealed against the decision to include the material, but this was not upheld.
"Before this ruling, it did not matter what you say within reason,
because you could write a cheque to make it right," Chamberlain said.
"Now, if you get it wrong, you could end up writing a cheque for a lot
"’Without prejudice’ are not magic words. You cannot now make the conversation
disappear if it is the wrong conversation."
‘Without prejudice’- what does it mean?
● Robert Halton, HR director at law firm DLA, said a little
knowledge could be a dangerous thing. "My understanding of without
prejudice is to do with professional privilege – a thing between lawyers.
"When dealing with sensitive matters to do with people you have to be
very careful. Lawyers can have off-the-record conversations – this is good
because they are trying to reach a resolution without going to court. But there
is probably some misunderstanding with people who are not familiar with the
law. They use legal terms and think it covers them, when the principle does not
apply. It’s a training issue. People need to know where to draw the line."
● Mike Emmott, employee relations adviser, with the Chartered
Institute of Personnel and Development warned that managers often use the term
‘without prejudice’ without understanding the legal dangers.
"This case itself is evidence that the words are misunderstood, since
[BNP] is not a small firm and presumably has its own legal advice.
"The words are often used with too broad a meaning in the mistaken
belief that you can keep things out of a tribunal."
Emmott said the words should be used to mean an offer is not an admission of
liability when resolving a dispute, but "lots of things said without
prejudice can still influence a tribunal or court case".
By Lindsay Clark