Without prejudice meetings and phone calls
‘Without prejudice’ meetings and phone calls in employment situations are held to discuss how much money your employer is willing to offer you as part of your exit package. The meaning of ‘without prejudice’ and when to use the convention are explained further in our guide on ‘how to use without prejudice‘. For our purposes here though, it 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 without prejudice meeting in the first place
- Listen, don’t speak (apart from to seek any factual clarification)
- 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 a successful negotiation and settlement.
It’s usually your employer who will ask you to a without prejudice meeting or who will pick up the phone to your solicitor (if you have one) during a negotiation and before a claim is issued, and ask to speak without prejudice. This would become a without prejudice phone call. Then the employer will explain how much they are willing to offer as an exit package for you.
It is less common for you, as an employee, to ask for a without prejudice meeting or to a without prejudice phone call, although there are occasions when it would be appropriate to do so which are discussed further below. Rather than to initiate verbal discussions, you will usually find it easier to set out the issues in writing by way of a without prejudice letter. (We have a useful guide on how to write without prejudice letters.)
On the other hand if you have a solicitor they will often just pick up the phone to discuss your case with your employer, as a solicitor will be confident in knowing what to say and how to say it on a without prejudice basis.
Below 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 your employer or you have suggested the meeting.
Without prejudice meetings usually take place when 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 wants you to leave the business. Your employer would then ask to speak without prejudice, and suggest an exit package for you.
Without prejudice meetings are less common after tribunal proceedings are issued, simply because by that point you’ve probably left employment and therefore it is more effort to get people together. However, in some high-value cases it can be beneficial to have a without prejudice meeting even at this late stage.
Be careful if there is only a verbal agreement to speak without prejudice. Where there’s only 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.
Whether or not to attend ‘without prejudice’ meetings. There is no legal requirement for you to attend a without prejudice meeting that your employer has asked you to go to, and it cannot later be held against you at work or in tribunal if you do not attend. Often when the employment relationship has broken down and your employer has caused you a lot of stress and anxiety, 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. It is actually quite a good idea to say something along the lines of “As I’m currently signed off sick with stress and anxiety I’d like this process to be conducted in writing.” If you have legal representation, then you can ask your lawyers to write everything for you, to be sent under your name, or to communicate directly with your employer on a without prejudice basis.
What to do during without prejudice meetings. 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 – apart, perhaps, from seeking clarification on any point they make which is unclear. Don’t be tempted to pour your heart out to HR or complain about how badly treated you’ve been – they probably won’t be on your side. Plus, you might reveal something which they could use against you somehow. Just turn up, keep quiet, listen to what they have to say and try to take detailed notes.
How to respond to offers made in without prejudice meetings
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? Better still, ask them for a written draft that you can study further.
Try to avoid appearing to be pleased by the level of the offer, or desperate to conclude negotiations as soon as possible – keep a straight face, even if the offer is higher than expected. When you have had a chance to think about it you can get back to them, or your legal representative can get back to them on your behalf.
As with any negotiation, it is unlikely that the employer will put forward their best offer first. Also, the people who attend without prejudice meetings on behalf of the employer often do so with specific instructions about how high an offer they are allowed to make. If you reject their offer, then they 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 most exit packages are put in writing in the form of a settlement agreement. When you receive the agreement from your employer’s HR or legal department, it will probably be at least 10 pages long (see our settlement agreement templates).
There will inevitably be some points included in it 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. This means that in principle you are happy with the offer itself, but in practice you want to check the wording of the settlement agreement document to see what it is they want you to sign up to.
- 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.’
Whether to request a without prejudice meeting yourself
If you decide to request a without prejudice meeting yourself, then you would be well advised to do so from a position of strength. That means after you have put your legal case forward and fought for your rights either through the grievance process, the initial stages of the tribunal process or through without prejudice correspondence.
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 requesting a meeting could work.
If you have a lawyer you could ask them 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 where you are only permitted to bring a trade union representative or a colleague.
A Note on the 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 – as explained above – 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.
See also our article on the differences between without prejudice meetings and protected conversations and our guide on protected conversations. If, when you’ve had a look, you still feel confused about them, don’t worry as it’s 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.