Employers often want an “off the record” chat with employees to see if they can persuade an employee to leave quickly and amicably under a compromise agreement. Such chats are seen as being more friendly than going through a formal process which documents the employee’s failings – and if successful they tend to resolve matters more quickly than following a full dismissal procedure. However, where the employee does not accept the offer, the employer can often be left in a difficult position as the employee tries to rely on the discussion as part of claims of discrimination or constructive dismissal. Here are some top tips for making sure the conversation is kept out of the court room….
The ‘Without Prejudice’ rule
b) there is an element of unambiguous impropriety (a term used to describe situations where the ‘without prejudice’ rule has been used to conceal some bad action on behalf of the party seeking to rely on it). For example, during settlement or grievance discussions the employer makes comments that could be construed as discriminatory such as “we want to dismiss you because you are black”. In this situation, the public policy in withholding the statement is outweighed by the requirement that such a statement should be brought to light.
Managing the risk
Tips for handling potential ‘without prejudice’ discussions
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