‘Without prejudice’ phone calls
It’s usually the employer who initiates without prejudice phone calls & meetings
It is very common for an employer to ask you to a without prejudice meeting or to pick up the phone to the other side during a case, or even before a claim is issued, and ask to speak without prejudice. If you agree to this, then this would become a without prejudice phone call. Then the employer will often explain to you how much they are willing to offer to enter into a settlement agreement.
It is less common for an employee to ask for a without prejudice meeting or a phone call, this is because for an employee to open negotiations is a big step and it is therefore usually better to set out the issues on paper in a without prejudice letter (see below), rather than commence verbal discussions.
Without prejudice meetings are less common after tribunal proceedings are issued
This is simply due to the cost and effort of physically getting people together, but in some high-value cases it can be beneficial to have a without prejudice meeting at this late stage. It is much more common for your employer to invite you to a without prejudice meeting whilst you are still employed, for example after you have submitted a written grievance but before the grievance is investigated, or when your employer believes there are serious performance concerns and wishes you to leave the business. Your employer would then ask to speak without prejudice, and suggest an exit package for you.
Be careful if it’s a verbal agreement to speak without prejudice
Where it is a verbal agreement to speak without prejudice, then obviously there is an element of trust and you need to be careful what you say and who you say it to. Instructing a specialist employment lawyer to represent you is a good idea if you’ve got any worries about handling this kind of encounter yourself.
The purpose of without prejudice conversations is to discuss a financial settlement
Without prejudice conversations in employment situations are normally held to discuss how much money your employer is willing to offer you as part of your exit package. As mentioned earlier, ‘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 perhaps 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. (See chapter 8 for more on this.) 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 ‘without prejudice’ conversation in the first place
- Listen, don’t speak
- Take notes