THE WITHOUT PREJUDICE RULE, AND PROTECTED CONVERSATIONS
We are all familiar with the situation where there is an employee in respect of whom there are a range of problems or difficulties. These can be performance, health, reliability, personality clash, attitude etc. For whatever reason, the employer has lost confidence in the employee’s ability/suitability long term, or does not want to go through a lengthy disciplinary process but wants to open discussions on terms of an agreed departure.
WITHOUT PREJUDICE CONVERSATIONS
There is a long line of legal authority that where there is a dispute then conversations which are intended to try and settle the dispute are protected by the “Without Prejudice”, Rule, and cannot subsequently be referred to in Court or Tribunal without the consent of both parties. For the rule to apply there must be a dispute and the communication must be in an effort to settle. It can be difficult to assess whether there is a dispute. – For example, in one case where a Teacher had been given a final written warning and the Principal, expecting further difficulties, wanted to discuss an agreed departure, the Tribunal found that because the warning had already been given and there was no outstanding disciplinary action there was no dispute. One test used by the Courts is whether “the parties might reasonably contemplate litigation if they could not agree”.
WHERE NO DISPUTE, THE CONVERSATION IS ADMISSIBLE IN PROCEEDINGS
The difficulty is that if there is no dispute then the content of the discussion is admissible in Tribunal proceedings. The employee will rely on the conversation as demonstrating that the employer has already made its mind up to get rid of him, so that the disciplinary process is a sham.
PROPOSAL FOR SETTLEMENT
To be covered by the Without Prejudice Rule there must be a proposal in some form – simply setting out arguments about bad behaviour is not sufficient.
There are a series of exceptions to the without prejudice rule. Perhaps most important is that where the employer is plainly acting improperly in the meeting then the without prejudice protection should be lifted – often thought to cover discriminatory elements or comments within the meeting.
McKINSTRY v MOY PARK & OTHERS [2015 NICA12]
In this case the Northern Ireland Court of Appeal stated “the concept of without prejudice discussion is a complex and challenging one even for lawyers and the judiciary”. The Court concluded that there must be clear evidence that the meaning of “Without Prejudice” communications was properly explained to the employee. It also concluded that there could not be a dispute because the employee was not aware of the purpose of the meeting before it took place.
PREPARING FOR A WITHOUT PREJUDICE CONVERSATION
- Establish the nature of the dispute.
- Clearly explain at the beginning, or even in any email/letter inviting the employee to the meeting, that the meeting is “without prejudice”, and what this means.
- Make a proposal for resolution.
“PROTECTED CONVERSATIONS “DO NOT APPLY IN NORTHERN IRELAND
In order to deal with the problem of requiring a dispute in 2013 the Government in GB amended the Employment Rights Act to introduce the concept of ”protected conversations”. However, no such change has been made or is contemplated in Northern Ireland, so the concept of a “protected conversation” does not legally exist. In any event the GB requirements are complicated, as set out in detail in ACAS Guidance. The phrase “protected conversation” is better avoided in Northern Ireland as some cases suggest it may lead to confusion.
OFF THE RECORD CONVERSATIONS
The Law does not recognise “off the record” conversations and you should assume that any such conversations may be referred to in Court or Tribunal.
DAVID RICE v DIGNITY FUNERALS LIMITED
In this Northern Ireland Industrial Tribunal case from 2017 the Tribunal allowed a secret recording by the employee of what the employer thought was a without prejudice meeting suggesting a move to Scotland to be admitted in evidence. Mr Rice had been suspended pending investigation of what subsequently turned out to be serious disciplinary allegations leading to his dismissal. The Tribunal concluded that as the employer was only investigating and the employee had not yet raised any grievance about the process there was not yet a dispute.
Unless carefully prepared for and set up, or where there is clearly a dispute – for example a Tribunal claim – it is dangerous to rely on the Without Prejudice rule as preventing an employee from raising evidence of conversations.
Jones Cassidy Brett Solicitors. January 2018