The term ‘without prejudice’ is widely misunderstood. I suggest that you start by reading this article and then, armed with some knowledge, ask your boss what he or she means.
Employers often use the term ‘without prejudice’ in an attempt to have a conversation about a difficult subject, believing that it means that you will not be able to repeat the content of the conversation to anyone else, in particular a court or tribunal, but that is not always the case.
Using the ‘without prejudice’ label will only be effective to protect a conversation if there is already a dispute going on between you and your employer. This might mean something like an ongoing disciplinary or performance management procedure, or a dispute about the amount of a bonus. Hence if your employer has ambushed you by raising an issue for the first time he or she cannot claim the protection of the ‘without prejudice’ label for whatever has been said.
Many people believe that ‘without prejudice’ means something like ‘off the record’. However, ‘off the record’ has no specific legal meaning, whereas ‘without prejudice’ does – it means that the conversation or other form of communication will not be referred to in any future court proceedings.
The purpose of it is to allow the parties involved in a dispute to make genuine offers of settlement to each other without being concerned that if the dispute goes to court, the court’s decision will be influenced by the figures being put forward in the settlement discussions.
An employer cannot decide that a conversation will be without prejudice after it has taken place – this has to be agreed at the start of the conversation. If your employer is asking you to agree now that a conversation that has already taken place should be relabelled without prejudice you can politely refuse. You can say that you are in principle willing to have without prejudice discussions, but only where they are appropriate and only when it is agreed at the outset that the conversation should be not be disclosed in any future court proceedings.
If your employer asks you to have a without prejudice conversation it is usually a clear signal that a difficult subject is going to be discussed, usually about the terms on which you might move on from the organisation. Remember that the conversation is only that – you do not have to agree to anything and you are free to put forward your own proposals if you are unimpressed by what your employer is proposing.
It is usually best to use the conversation as an opportunity to listen to what might be on the table, but not make any decisions until you have had time to reflect. Employers are not free to say what they like during without prejudice conversations. For example, they cannot use them to threaten or blackmail you, or to say things that are clearly discriminatory – you should make a careful record of everything that is said in case you need to make this point at a later stage.
• Meriel Schindler, partner and head of employment team, and Christina Morton, professional support lawyer, Withers