Without Prejudice?
The Without Prejudice (“WP”) rule works to prevent statements, whether in writing or orally and made in a genuine attempt to settle an existing dispute, from being put before a court as evidence against the interest of the party which made them. Effectively, if WP applies, a court can never be told of the existence or content of the WP dialogue.
In an employment context, an employer and employee may wish to enter into a WP dialogue to try to resolve an employment relationship which has soured. The WP mechanism allows the parties to have a frank conversation to facilitate that, without fear that it could be used in future proceedings. Please note that although a WP conversation has some of the properties of the “Protected Conversation” mechanism provided by S111A Employment Rights Act 1996, there are differences in their respective coverage and application.
If a party seeks to rely on the WP rule, it is best practice to use the term before starting substantive dialogue with the other party. Although invoking it is helpful in showing that the dialogue was so covered, it does not automatically ensure that it applies. There are circumstances in which a court will decide that although the phrase had been used, the nature of the dialogue did not satisfy the requirements that it be deemed to be WP, with the consequence that both its existence and content can be used in court.
One of those circumstances is where the communication “would act as a cloak for perjury or other unambiguous impropriety”. This is commonly referred to as the “unambiguous impropriety” exception and is only applied in the clearest cases of abuse of privilege.
A hypothetical example in employment would be the following.
An employee is summoned to a meeting with his managers and HR representatives, and told that the meeting is “WP”. He is told that he is at risk of redundancy but is given a proposed Settlement Agreement to terminate his employment, which offers slightly better terms than the employee is entitled to if his redundancy was to be confirmed. Clearly expecting the employee to accept the terms of the Settlement Agreement, but not making it clear that the statement is predicated on that expectation, the employer tells the employee not to come back to work, and that he will receive his notice pay in lieu of working it. The employee does not immediately sign the Settlement Agreement as he is not satisfied with the terms. There follows a time period during which the parties attempt to agree terms, and during this period, the employee does not return to work. During this period, in the numerous email exchanges to attempt to agree terms, the employer makes no complaint about the employee’s absence nor invites him back to work. After a few weeks’ impasse, the employer, frustrated at the employee’s refusal to sign the Settlement Agreement, and in a naked attempt to coerce the employee into accepting the terms of the current offer, informs the employee that he is subject to disciplinary action by the employer on the grounds that he has been absent from work without permission. The sanction for this could be summary dismissal, if the purported “unauthorised absence” is deemed by the employer to amount to “gross misconduct”.
But what about the employer’s assurance in the WP meeting that the employee did not have to return to work? The employer now points to the WP properties of the meeting, effectively stating that such a conversation never happened, and so the employee has been unilaterally absent from work. Under the terms of the employment contract, the employee was entitled to rely on the instructions by his superiors in the WP meeting. Indeed, he would be in breach of his employment obligations if he did not. Now he is being told that in effect, the employer denies that conversation took place and so he, the employee, is putatively in breach of his employment contract.
If the employee was disciplined in such circumstances, and as a result, issued Employment Tribunal or High Court proceedings, he could claim that the purported use of the WP rule had been abused and so the contents should be admissible to the Court. After all, the absence of bona fides by the employer in making a statement which it now claims, due to the use of WP, never took place, had materially disadvantaged the employee – he had been disciplined after relying on an assurance by the employer which the employer now denied that it made. If the court decided that the actions of the employer amounted to “unambiguous impropriety” it has the right to lift the cloak of WP and so allow admission of the contents of the meeting to the court. In such circumstances, it is hard to envisage a situation in which the court could not find that the employee had been unfairly treated.
It should be noted that the “unambiguous impropriety” argument is a high hurdle to successfully overcome, and will only be granted by the courts where the “impropriety” is obvious and manifest. The lifting of the WP veil is not lightly granted. All parties which enter into such a dialogue should be aware of WP limitations and exceptions.
Meaby & Co are lawyers experienced in all employment issues. Should you require advice on the use of the WP or “Protected Conversation” process, or indeed any aspect of employment law, please contact Chris Marshall on 0207 703 5034 or cmarshall@meaby.co.uk.
