Workplace Disputes and ‘Without Prejudice’ Discussions – Guideline Ruling

Litigation should always be a last resort and, as an Employment Tribunal (ET) ruling made plain, it is very much in the public interest to encourage employers to embark on confidential, without prejudice discussions with a view to achieving a non-confrontational resolution of workplace disputes.

The case concerned a local authority employee who suffered from mental ill health and had been off work for some time. After he complained of alleged discrimination, a senior manager invited him to a meeting. No resolution was, however, achieved and he subsequently resigned and launched ET proceedings, claiming disability discrimination and constructive unfair dismissal.

The employer, who denied his claims, argued that all reference to the meeting and any documents relating to it should be excluded from the hearing of the case. Such evidence was, it contended, inadmissible in that the meeting was plainly held on a confidential, without prejudice basis. The invitation was marked as such and the man had clearly indicated that he was content with that position.

For his part, the man argued that the without prejudice rule should be disapplied due to impropriety on the employer’s part. He alleged, amongst other things, that unfair advantage was taken of his mental ill health, that an attempt was made to browbeat him into resigning and that he was presented with an ultimatum that he would be dismissed if he did not accept an exit package which he considered inadequate.

Ruling on the matter, the ET emphasised the public interest in ensuring that all sides in a dispute are afforded an opportunity to enter into free and frank discussions with a view to settlement and without running the risk that anything they say may subsequently be used against them in litigation.

In upholding the employer’s arguments, the ET found that there was absolutely no impropriety on the part of its representatives at the meeting. The man’s attendance was voluntary and it was made abundantly clear to him that the meeting would be conducted on a without prejudice basis. There was nothing untoward about the discussion and an entirely reasonable view was taken that a without prejudice meeting, face to face, might help to defuse the dispute and achieve an amicable resolution.