Such discussions are normally saved for when there is a dispute with an employee or you are discussing the particulars of an employee’s departure. Labelling them as ‘Without Prejudice’ should allow for such conversations to be banned from being relied upon at a Tribunal. However is it really that simple?
The ‘Without Prejudice’ rule applies to statements both oral and written used in a genuine attempt to settle a dispute or departure of an employee.
Both parties must agree and understand the implications of using without prejudice, otherwise it will not be valid. Employers cannot simply say that a conversation is without prejudice, they must ask for the employees consent before the discussions can become binding in this manner.
Further the rule should not be abused, and used as a tool to cover up pressuring discussions that could aid a parties case in a hearing situation. Therefore the parties should look as to whether a situation warrants without prejudice or not.
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