Without Prejudice Meetings
Why has my employer asked for a Without Prejudice meeting?
Without prejudice meetings in employment situations are held to discuss how much money your employer is willing to offer you as part of your exit package. ‘Without prejudice’ essentially means ‘off the record’ and is not something which you (or your employer) can later rely on in an employment tribunal. It gives both parties the chance to speak frankly about the employment relationship, how it has broken down, and more importantly, how much money can be agreed in terms of an exit package for you.
Such an exit package will hopefully involve a payment in lieu of your notice period plus an ‘ex gratia’ payment for you, which is usually tax free up to the first £30,000. Your employer will also want you to sign a settlement agreement to confirm that you no longer wish to bring any employment tribunal claims against them.
Top 3 TIPS:
- Let your employer suggest the meeting in the first place
- Listen, don’t speak
- Take notes
There are a few basic pointers to be aware of when it comes to meeting your employer on a without prejudice basis, and the required approach is slightly different depending on whether you have requested the meeting or whether it was requested by your employer.
If your employer has requested a without prejudice meeting then this can be a positive step towards signing a settlement agreement which includes an ex gratia payment to tide you over in the lean period between jobs. We also have a useful article on without prejudice letters here.
What to do during a without prejudice meeting
If you do decide to attend a without prejudice meeting requested by your employer then normally our advice would be to say as little as possible. Don’t be tempted to pour your heart out to HR or ‘get the violins out’ and moan about how badly treated you’ve been – they probably don’t care too much in the circumstances. Plus you might reveal something which they could use against you somehow. Just turn up, keep schtum and listen to what they have to say. If possible take notes too.
If HR or management make you a without prejudice offer, the best advice would be to say that you’ll consider what they have to say and get back to them. It’s often worth asking them for a breakdown of how they calculated the figure – for example, does it include your notice pay or not? Try to avoid appearing to be pleased by the level of the offer, or desperate to conclude negotiations as soon as possible. When you have had a chance to think about it you can get back to them, or we can get back to them on your behalf.
As with any negotiation, it is unlikely that they will put forward their best offer first, and often the people who attend without prejudice meetings do so with specific instructions as to how high they are allowed to go. If this is rejected, then it may need to go back to senior management for approval to raise the ceiling before they can offer you more. So be patient.
If you do reach some common ground and the offer seems acceptable to you, then bear in mind that the vast majority of exit packages are put in writing in the form of a settlement agreement. When you receive the settlement agreement from your employer’s HR or legal department, it will probably be at least 10 pages long (see our templates section for some examples). This means that there will inevitably be some points in there which you haven’t agreed in your without prejudice meeting. For this reason, it would be best for you to agree terms ‘subject to the wording of the settlement agreement.’ This gives you more room to manoeuvre once you actually receive the document.
In summary of the above, if attending a Without Prejudice meeting:
- Don’t say too much
- Don’t agree to anything on the spot
- Ask for a breakdown of any offer made
- Be patient during negotiations
- Agree terms ‘subject to the wording of the settlement agreement.’
Deciding whether to attend a without prejudice meeting?
There is no legal requirement for you to attend a without prejudice meeting, and it cannot later be held against you in court or in tribunal if you do not attend. Often when the employment relationship has broken down, your employer has caused you a lot of stress and anxiety perhaps by bad management or too much pressure to achieve unrealistic results, and you may not feel physically or mentally able to attend a meeting with them.
If this is the case, then you could just ask your employer to put their points across to you in writing. If you have legal representation then you can ask your lawyers to communicate directly with your employer on a without prejudice basis. To see how we’ve helped employees in without prejudice negotiations, have a look at some testimonials here.
Should you request a without prejudice meeting yourself?
If you do decide to request a without prejudice meeting then you would be well advised to do so from a position of strength, that is once you have put your legal case forward and fought for your rights either through the grievance process and/or the initial stages of the tribunal process or through correspondence from us.
Generally, we would advise against you requesting a without prejudice meeting too early because it can be seen as a sign of weakness. It can indicate that you are going to crack under pressure and may not have what it takes to pursue a just and fair result. But each case is different, and if you are confident that you could achieve a good settlement and quickly, then a meeting could work. You can always ask us to attend with you or to be part of a conference call when it comes to without prejudice discussions – such discussions are not like the formal grievance/disciplinary meeting whereby you are only permitted to bring a trade union representative or a colleague.
Difference between a ‘without prejudice’ conversation and a ‘protected conversation’
In around 2014, the government introduced a new label for certain types of conversations, called ‘protected conversations.’ It is possible that your HR department may ask you for a protected conversation. A protected conversation does not need to have the context of a dispute between the employee and the employer. So an employer can just pull you aside for a protected conversation and tell you, for example, that your work is substandard and they want you to leave, and they’ll offer you a payment in lieu of notice for example. So long as there are no allegations of discrimination or whistleblowing, then a protected conversation is still off the record, just like a without prejudice conversation. (So a protected conversation normally concerns conduct or capability.)
Without prejudice conversations, however, can be used by employers even where there are allegations of discrimination or whistleblowing, but these will only be off the record if there is a genuine dispute between the parties, which may lead to litigation. So if you have threatened to sue them, or if you have instructed a lawyer to represent you, then they can ask you for a without prejudice conversation, no matter what your allegations are.
You can also find a more in-depth article on the differences between without prejudice meetings and protected conversations.
If you still feel confused about the above, don’t worry as it is quite a technical area! Get in touch if this is happening to you.
If you want to calculate a rough value of your case, then try our free Settlement Agreements Calculator.