Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Employment lawDismissal

Weekly dilemma

by Personnel Today 25 Oct 2005
by Personnel Today 25 Oct 2005

Can we offer an under-performer a compensation package instead of going through time-consuming legal procedures?

The obvious risk is that the employee will not accept the offer. Undoubtedly, they will then argue that any subsequent disciplinary or performance review process is a sham, and that they were unfairly dismissed as a result. Or they may allege that you have destroyed the relationship of mutual trust and confidence, and claim constructive unfair dismissal.

To minimise risk, employers often say that this type of discussion is being held ‘without prejudice’. However, a simple statement to that effect will not necessarily provide protection of the ‘without prejudice’ doctrine, which dictates that such settlement communications are inadmissible in court or tribunal proceedings. For this to apply, there must be a genuine dispute between parties at the time, which they are endeavouring to settle. If there is not, the conversation will be referred to in subsequent proceedings.

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

Consequently, you should ensure that ‘without prejudice’ discussions are only conducted once a dispute has arisen, and are not used to create the dispute. The most prudent approach is to instigate a disciplinary or performance review procedure before having any such discussion. At the end of the initial stage, suggest that the overall outcome may well not be favourable to the employee and propose a without prejudice conversation to discuss ways this can be avoided. If the negotiations fail, you can fall back on the formal procedures, although this is not without risk of allegations that the process is a sham, or potential claims of constructive dismissal. You should always apply the principle that anything said during ‘without prejudice’ negotiations is at risk of being relied on in a tribunal.

If the employee accepts the offer and signs a compromise agreement, you will have avoided the need to comply with the statutory dismissal procedure. You will also have the reassurance of knowing that they have signed away their right to instigate proceedings against you.


Personnel Today

Personnel Today articles are written by an expert team of award-winning journalists who have been covering HR and L&D for many years. Some of our content is attributed to "Personnel Today" for a number of reasons, including: when numerous authors are associated with writing or editing a piece; or when the author is unknown (particularly for older articles).

previous post
Warnings that 24-hour opening may lead to hearing problems for bar staff
next post
Survey proves fitter employees lead to healthier balance sheets

You may also like

How can HR prepare for changes to the...

3 Jul 2025

Government publishes ‘roadmap’ for Employment Rights Bill

2 Jul 2025

Employers’ duty of care: keeping workers safe in...

27 Jun 2025

When will the Employment Rights Bill become law?

26 Jun 2025

Seven ways to prepare now for the Employment...

20 Jun 2025

Sleeping security officer wins £20k for unfair dismissal

16 Jun 2025

The employer strikes back: the rise of ‘quiet...

13 Jun 2025

Lawyers warn over impact of Employment Rights Bill...

13 Jun 2025

Racism claims have tripled and ‘Equality Act is...

12 Jun 2025

Court rejects Liberty’s legal challenge against EHRC consultation

9 Jun 2025

  • Empowering working parents and productivity during the summer holidays SPONSORED | Businesses play a...Read more
  • AI is here. Your workforce should be ready. SPONSORED | From content creation...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+