In light of the Government’s recent proposal to allow ‘protected conversations’ in the workplace, we assess when an ‘off the record’ conversation is truly off the record and provide our top five tips on conducting such ‘off the record’ conversations.
The 'off the record' chat (or “without prejudice” conversation, as lawyers like to call it) has long been a key tool for employers seeking to prevent workplace disputes from leaving the workplace and entering the domain of the Employment Tribunal. However, not all conversations that are professed to be ‘off the record’ or ‘without prejudice’ are truly off the record, as, quite often, conversations that you consider will never be heard about in a Tribunal or Court are later allowed to be admitted as evidence.
Top Tip 1: Ensure you label all minutes of off the record meetings and off the record correspondence as ‘without prejudice’.
However, you cannot simply rely on labelling a conversation as ‘off the record’ or ‘without prejudice’ for them to be deemed to be so by a Tribunal or Court, and, in some circumstances, conversations not expressly stated as ‘without prejudice’ may actually be ‘without prejudice’.
Top Tip 2: The conversation needs to be in relation to a ‘genuine dispute’ which you are seeking to compromise.
A ‘genuine dispute’ in this context does not necessarily mean that litigation has been threatened but, instead, that if agreement is not reached during the ‘without prejudice’ conversation, then litigation could reasonably be expected to be in the parties’ contemplation.
In BNP Paribas v Mezzotero (2004) it was decided that an employee having brought a grievance does not necessarily mean that the parties are in a dispute, as the grievance may be upheld or dismissed for reasons that the employee finds acceptable, in which case the parties were never in dispute.
This was also confirmed in the case of Leclerc v BSI Products Services Ltd, in which an employee brought a formal grievance and a ‘without prejudice’ meeting was held in order to agree exit terms. The Tribunal decided that this meeting was not in the context of a dispute as the meeting concerned the entirely separate issue of terminating her employment, not the grievance that had been raised, and therefore it was not a genuine attempt to settle a dispute.
In these cases, the Employment Appeals Tribunal was influenced by the vulnerable position of the employees and the fact that meetings with regard to the termination of employment had been sprung upon the employees, who had not been given an opportunity to expressly agree to entering into a ‘without prejudice’ discussion prior to the meeting.
Top Tip 3: Advise Employees in advance of such meetings that the meeting is to be held on a ‘without prejudice’ basis and gain their genuine and express consent to being involved in such a conversation prior to the meeting.
The ‘without prejudice’ nature of a conversation can also be waived by both parties expressly and, in some circumstances, this can be implied by the parties’ conduct.
In Brunel University & Anor. v Webster & Vaseghi, the university’s Vice Chancellor stated in their quarterly newsletter that the university had spent in excess of £60,000 defending two particulars claims, and stressed that the university would “defend its reputation against unfounded allegations, especially when these are accompanied by unwarranted demands for money”. The employees who were the subject of the comments after having brought race discrimination claims, both lodged grievances which were heard by an independent committee and, during the course of those deliberations, the committee looked at the previous settlement negotiations. The employees later brought claims for victimisation, and each of the claimants and the respondent referred to the ‘without prejudice’ negotiations in their pleadings. The Employment Appeal Tribunal held that the conduct of both parties throughout the grievance hearings was totally inconsistent with the maintenance of 'without prejudice' privilege, and concluded that there was an implied bi-lateral waiver of privilege in respect of all references to the settlement negotiations and so they were able to bring such ‘without prejudice’ conversations to the attention of the Tribunal during the victimisation proceedings.
Top Tip 4: Do not act in a way that is inconsistent with your intention to keep the without prejudice conversations strictly private and confidential.
There are also a number of exceptions to the ‘without prejudice’ rule, therefore ‘without prejudice’ communications may become admissible in the following circumstances:
- To determine whether a concluded Compromise Agreement has been reached;
- To show that a Settlement Agreement should be set aside on grounds of misrepresentation or undue influence;
- To stop a party from asserting something contrary to his/her clear statement in those communications in which the other party was intended to act and did act;
- If the exclusion of the evidence would conceal purgery, blackmail or other ‘unambiguous impropriety’ (for example, making discriminatory remarks in the course of the settlement negotiations);
- To explain delay or apparent acquiescence in the context, for example, of an application to strike out proceedings for want of prosecution;
- To show that a Settlement Agreement should be rectified;
- To determine whether a party acted reasonably to mitigate any loss in the context of agreeing a settlement;
- Where the parties agree the material should be admitted to the Court, for example, to determine the question of costs;
- To construe an agreement between two parties where the communications are evidence of facts within their common knowledge which have a bearing on the meaning that should be given to the words of the contract.