Let's not beat about the bush. It is not uncommon for employers to pay off a member of staff without observing formal procedures or the niceties of employment law. A common way of doing this is to invite employees to a 'without prejudice' meeting to discuss their future (or rather lack of one) with the company. If the employee is prepared to accept the deal on offer and sign a compromise agreement, all well and good. If not, then at least nothing said at the meeting can be used in a tribunal or court later on - right? Not quite. A recent court case has emphasised that merely uttering the magic words 'without prejudice' does not necessarily mean the contents of a meeting are off the record or, to use the legal jargon, 'privileged'. The tactic will work only if the discussions are aimed at settling an existing dispute between the parties, rather than one arising from the meeting itself. Even the fact that the employee has already raised a grievance may not be enough to trigger the 'without prejudice' protection. The court case will not prevent employers from throwing money at employees to persuade them to go quietly - but they should be more circumspect about what they say in severance negotiations.
by Michael Burd and James Davies, Lewis Silkin solicitors, e-mail: firstname.lastname@example.org