A common misconception is that the employer can simply ask an employee if they are willing to have a “without prejudice” or “off the record” discussion. Some employers seem to believe if the employee agrees, they are then safe to say what they like in order to bring about the employee’s departure. However, this is quite wrong.
Even if the employee agrees to a “without prejudice” conversation, such a discussion is not viewed by the law as being off the record. In order to have a genuine without prejudice conversation (one that is legally off the record) there must first be a dispute between the parties. That doesn’t mean legal proceedings have to be issued, but there must at least be a significant difference in views. As such, an employer should never launch straight into “without prejudice” negotiations – there needs to be a difference of views first.
Employers also can’t use the “without prejudice” label to threaten or unfairly pressure an employee to resign. The intention must be to genuinely settle a dispute.
And finally, it is crucial that both parties understand what “without prejudice” means. If the employee is not being legally represented, we always recommend that you make sure the employee acknowledges that they understand the conversation is confidential, off the record and unable to be referred to in any other forum, before you proceed any further.
So while a without prejudice discussion may allow the parties to talk more frankly and to achieve a swifter resolution than might otherwise be possible, to gain “off the record” protection, employers must act carefully. The risk is that if you don’t get it right and don’t get an agreed outcome, anything you say can be used later – proceed with caution!