This can cause great difficulties in employment situations, because often conversations regarding possible exit packages take place at an early stage and before a dispute is actually in existence. As a result the without prejudice protection is dissolved. For example, if an employer suggests an employee may be dismissed if terms are not agreed, this could give rise to a discrimination claim or a breach of the implied term of trust and confidence; or an employee may use such discussions to show that an employer’s decision was already pre-determined.
As a result, changes have now been effected (as of 29th July 2013) which provides for the maintenance of such protection to employers.
Legislation has now been amended to prevent pre-termination negotiations that take place from 29th July 2013 onwards from being referred to in evidence in an ordinary unfair dismissal case, unless there has been “improper behaviour” by the parties.
Under the legislation pre-termination negotiations has been defined as:
“Any offer made/discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee”.
ACAS has published a Code of Practice on pre-termination negotiations, along with guidance on good practice. Failure to abide by the Code does not itself result in an employer being liable, however if subsequent proceedings are brought the Tribunal can consider the degree of compliance with the Code.
It is likely the Code will be most useful in deciphering whether there has been improper behaviour by either party and therefore whether the without prejudice protection can be relied upon.
When embarking upon any form of negotiations it is important legal advice is taken to establish if the without prejudice protection is applicable.
If you require any further information with regard to this and negotiations in general then please do not hesitate to contact Alexandra Dean on 01245 228141 or, firstname.lastname@example.org