‘Without Prejudice’ Rules have existed for a long time and are used by an employer when they and an employee have a dispute in their working relationship which they are trying to resolve in the most amicable way.
The ‘Without Prejudice’ Rules prevents oral or written discussions, that are made in a genuine attempt to resolve an existing dispute, being used as evidence in a Court/Employment Tribunal.
This concept still applies now that Pre-Termination Negotiations (and Settlement Agreements) were introduced at the end of July 2013 – but they only apply where there is already a dispute in place, or potentially will be a dispute. And the ‘without prejudice’ negotiations must not be used as a cover for perjury, blackmail or unambiguous impropriety (which are the most serious of circumstances where one of the parties was exploiting the without prejudice rule to blatantly conceal wrongdoing). There has often been uncertainty whether there is an ‘existing ‘dispute between the parties and the Pre-Termination Negotiations where introduced because of this uncertainty.
All the details about Pre-Termination Negotiations and Settlement disputes are here.
The new Pre-Termination Negotiations can take place where there is not a current dispute, or where there is a dispute that one of the parties is not aware of.
The other differences between ‘Without Prejudice’ Rules and Pre-Termination Negotiations are:
- The new Pre-Termination Negotiations discussions will only apply to ordinary unfair dismissal proceedings at an Employment Tribunal (i.e. they will be kept confidential from the Tribunal proceedings)
- However, ‘Without Prejudice’ rules would still apply to other types of claims, e.g. automatic unfair dismissal, breach of contract or discrimination (if there is an existing dispute)
So, with the Pre-Termination Negotiations being an expansion of ‘Without Prejudice’ Rules, what is likely to happen in the future?
Pre-Termination Negotiation discussions are statutory provisions and will run in parallel with the ‘Without Prejudice’ Rules. To ensure full protection against a Tribunal claim it is likely that any termination discussions by an Employer will include both elements, where this is possible.
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
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