My Employment Tribunal Journey – Part 3

Without Prejudice

In my last blog post, I shared my experience about a protected conversation that took place between myself and the general manager on 10th June 2020.

In this article, I want to delve into the concept of without prejudice, which for me came in the form of an E Mail that followed the call on 10th June 2020.

Shortly after putting the phone down on the unexpected protected conversation, I received an email from the general manager marked “without prejudice subject to contract.” At the time, I was in the dark about what this meant, and to be honest, I really didn’t pay it much attention with everything else that had happened that morning.

This email summarized our earlier conversation, outlining the company’s financial situation and the offer of voluntary redundancy, accompanied by a £1000 incentive. It also stated that if I declined, I would likely face redundancy based on predetermined scoring criteria. These criteria included length of service, sickness absence, and disciplinary record, all of which favored me due to my over 10 years of service.

The remaining criteria focused on performance, tied to specific tasks in the administration department. The scoring system ranged from zero to five, with five indicating the highest performance. This criteria and scoring matrix determined who would be most likely to face redundancy.

My low scoring in this particular section, upon first inspection, placed me at the bottom of the scoring criteria chart against the others in the redundancy ‘pool’

It’s crucial to note that at this point, no other team members were aware of the offer that had been made to me, the email emphasized confidentiality.

Also, at that time, no one else in the administration department had been informed about the impending redundancy, nor had any discussions been held regarding the criteria and scoring matrix that would be used should a redundancy consultation arise. Later, this lack of transparency along with many other factors weighed heavily on my subsequent decision to take my case forward to an employment tribunal.

I was advised that the company’s approach was to offer me voluntary redundancy to minimize stress, both for me and the team. However, this had a different impact on me, given my personal circumstances. As the sole stable income for my family during the uncertain times of the COVID pandemic, this approach may well have worked favourably for the company and my work colleagues but certainly not for me.

I was given seven days to consider their offer of £1000 if I agreed to voluntary redundancy as they had suggested. Although ACAS recommendations suggest between seven and ten days to consider any offers made, with no official guidelines for companies making fewer than 20 redundancies, this timeframe depended on individual circumstances.

As the days passed, I grappled with the decision as the days ticked by and I was aware that my time to make such an important decision on my families future was fast running out.

On day six, I received a call from the general manager reiterating the offer and pretty much pushing for a decision. I eventually declined the offer, expressing my willingness to work towards a solution that would benefit both parties. The company’s response reiterated their stance, emphasizing that no additional offer would be made and added that they were unsure as to what I meant when I said that I would be happy to work with them to achieve a outcome that suited both parties.

Following this, a consultation process was initiated with the rest of the admin team, leading me to reflect on the importance of understanding “without prejudice” in employment matters. I later learned about exceptions to this rule, prompting a preliminary hearing in my case.

Remember that it is crucial to disclose or mention any protected conversations or without prejudice conversations that you wish to rely on to support your claim from the outset.

Failure to do so could affect their admissibility later on.

Following this installment of my journey, let’s take a closer look at without prejudice in more detail.

What Does Without Prejudice Mean?

The Without Prejudice rule applies to communication both written and oral which are made as a genuine attempt to settle or negotiate a settlement in an existing dispute.

If an existing dispute does not yet exist then the without prejudice protection should not apply.

What Is The Difference Between Without Prejudice And A Protected Conversation?

Protected conversations can take place upon agreement when there are no existing disputes between the parties involved. The protection offered generally only extends to unfair dismissal claims through an employment tribunal but can be admissible as evidence in other claims.

Without Prejudice communication can only take place once there is an existing dispute between parties involved. Generally the protection offered extends to all claims through an employment tribunal so unless found void of protection, they cannot be submitted as evidence to support your case.

Is Subject To Contract The Same As Without Prejudice?

Subject to contract is a term used when an agreement is not yet binding. This is an important point to remember because communication labelled as subject to contract will generally not have the same protection as those marked without prejudice.

If parties have entered into negotiation and want the without prejudice protection but may want the offer of settlement discussed further then this should be made clear by adding both “Without Prejudice Subject To Contract” in communications.

Without Prejudice and Subject To Contract achieve different things and should not be confused.

What Are Open Communications?

An open communication is the exact opposite of a without prejudice communication in that it offers no protection whatsoever and can be admissable as evidence in legal proceedings.

Are Without Prejudice Communication Admissable In An Employment Tribunal?

For genuine negotiations, the protection offered by without prejudice covers tribunal proceedings. Any communication that falls under the scope is not admissable as evidence by either party throughout the process unless mutually agreed.

Are All Communications Labelled Without Prejudice Afforded Protection?

No, Simply labelling communication as without prejudice will not generally suffice.

Should parties find themselves involved in legal proceedings then all surrounding circumstances should be looked at to determine whether or not they are worthy of the WP protection.

Is There Anything That Without Prejudice Protection Does Not Cover?

Either party involved in negotiations cannot exploit the Without Prejudice protection in order to discriminate, Commit an act of perjury or make criminal intent against others in order to prevent legal consequences to their actions.

Can A Confidential Discussion Be Classed As Without Prejudice?

Although there are no rules as such on the terminology that should be used when inviting a party to enter into without prejudice negotiations, phrases such as asking them to enter into a confidential or off the record chat should be avoided to prevent confusion.

Referring to what is actually a without prejudice discussion as either of these terms may render all communication void of the priviledged protection of without prejudice which means that they are admissable as evidence in proceedings.

Do All Communications Have To Be Marked Without Prejudice To Gain Protection?

Following the first initial communication which falls under the scope of without prejudice, be aware that even though they may not be labelled as such, the protection can continue for as long as the chain of communication continues in order to reach a settlement regardless of what it may be.

Whilst there are no formal rules on how long these discussions can last, they will be covered to what is deemed as a reasonable amount of time in relation to the existing dispute.

To avoid confusion, it is good practice to always make the other party aware each time a without prejudice communication takes place.

What Happens If The Claimant Or Respondent Submit WP Communication As Evidence?

If either party submit any without prejudice material during the employment tribunal process, it must be raised by the opposing side as soon as possible to either have it removed. Remember, unless both parties mutually agree, neither side can submit WP communication as evidence to support their claim no matter how valuable it may be.

Are There Any Exceptions To The WP Rule?

YES!

Even if either party makes the other aware that a communication is without prejudice, If eithet party feels that it falls under any of the following then it may be admissable as evidence.

WP communication can generally be used to defend a party against allegations of fraud, misrepresentation or undue influence.

If a party is proven to have persued a dishonest claim or to have committed a criminal act including fraud the WP protection is void.

If a chain of communication regarding a genuine settlement negotiation is broken then following communication may not be covered unless stated on a new chain of discussion.

If the terms of a settlement are in dispute then the content may be admissable in determining as to whether or not the matter was concluded and on what basis.

WP protection is void if it is proven that a party were giving untrue facts or making false statements during discussion.

If a party attempts to create a dispute purely as a foundation to allow them to use WP protection as a guise to cover up an act of discrimination or otherwise then the WP protection could be void. This happened in my case.

A Final Note

If you feel that something marked without prejudice or a without prejudice discussion was in any way inappropriate, you must raise this with the employment tribunal as soon as possible.

I included the details in my ET1 and subsequently asked for consideration to be given to the fact that I felt that the communication did not fall under the scope of WP and why.

In my claim, a preliminary hearing took place before a judge to determine if the communication could be used as evidence to support my claim.

Entering into WP discussion, either written or verbal, can end up adding a lot of additional work to your claim if you are unaware of the implications. Forewarned is forearmed and I would urge anyone to do their research before agreeing to enter into any form of protected communication.

As always, the views and opinions expressed on my website are my own and in no way intended as advice, legal or otherwise. You must always make sure that you obtain independent advice from various sources.

If you would like to take a look at my other blog posts surrounding employment tribunals or if you would like to read my judgements along with written reasons, please follow the links below.

Employment Tribunal, My Journey Blog Posts

Government Website Judgement and Written Reasons Lisa Murray Vs Hudson Administration Services Ltd

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