Employees

Employees

"Off the record conversations" - Adam Brett discusses the pitfalls and sets out the options.

Most employers have to deal with the position where an employee is not "working out" and they would like to have a frank discussion and offer a package for the employee to leave. Best practice and case law suggest the employer should normally deal with this through performance management and working through the disciplinary procedure. Sometimes the employer tells us that he wants to treat the employee fairly, giving a reference and time to find another job and does not want to put the employee through the embarrassment of performance management/discipline. The employer would really like an "off the record" conversation to explain the position.

Jumping off the cliff

Unfortunately, the law does not recognise the concept of "off the record" conversations. Worse than that, when the employer opens the conversation about negotiated departure, there is no safety rope for climbing back up the cliff. The relationship of trust and confidence is almost inevitably damaged, allowing the employee to resign and claim constructive dismissal due to a breakdown of trust and confidence. The employee can argue that the employer has not used disciplinary procedures, so the constructive dismissal will often be automatically be unfair, increasing by up to 50% the amount that can be awarded by a Tribunal.

Options

The Labour Relations Agency: many employers underestimate both the legal protection and the real assistance that the LRA can give. Discussions or conciliation at the LRA have clear legal protection and cannot be introduced in evidence without the consent of both sides.

"Without Prejudice discussions": while not recognising such conversations, the law does allow the concept of "without prejudice" privilege. This privilege from producing evidence about settlement discussions is triggered where there is a genuine attempt to compromise it. It is clear that there must be a dispute and a genuine attempt at resolution. The case of BNP Paribas -v- Mezzotero [2004] demonstrates the limitations. In this case the Claimant raised the grievance about not being permitted to return to her old job after maternity leave. She was invited to a meeting which the employers said they wanted to be "without prejudice" and they suggested a substantial redundancy payment, while saying her grievance would be investigated. The Employment Appeals Tribunal confirmed that at the time of the meeting there was no dispute between the parties as to termination that the employer's remarks were attempting to compromise. Moreover, it would be an abuse of the "without prejudice rule" to permit the employer to use privilege to prevent reference to an attempt to terminate the employment, which might well be "unambiguous impropriety".

Two decisions of the English Court of Appeal demonstrate the fine line about what constitutes a dispute. In Framlington Group -v- Barnetson, the Court of Appeal considered how "proximate" unsuccessful negotiations leading to litigation have to be at the start of that litigation to attract the "without prejudice rule". The Court held that where litigation has not started, the rule should not be extended more than is required to promote the public policy interest in encouraging settlement.

By contrast in the case of Brunel University -v- Faseghi [2007], the English Court of Appeal concluded that, at least in discrimination claims, some aspects of the discussions had been included in a report of the University's grievance panel. The University had therefore waived the "without prejudice" provisions.

The "without prejudice" principle can be set aside where it would operate as a cloak for perjury, blackmail or other "unambiguous impropriety" which is likely to include discrimination. Therefore the "without prejudice" rule may, in certain circumstances, be set aside so that evidence will be admissible in victimisation cases.

Discussions between Lawyers: as can be seen from the above, the precise line can be difficult to draw, and a number of the cases suggest that Courts take into account whether the employee is being "bounced" or being put at a disadvantage. Aside from the LRA, the involvement of a lawyer for the employer, and a lawyer/union official or other suitable representative for the employee, may well be helpful. The involvement of lawyers makes it more likely that the discussions are indeed "in contemplation" of litigation and leaves less room for arguments about victimisation. It is often easier for lawyers to move away from arguments about who is at fault and concentrate on potential outcomes.

"Off the record" conversations with employees are dangerous and need to be properly planned and carefully thought through in advance.

Adam Brett is a Partner in the firm's Litigation Department specialising in employment and equality work. Adam can be contacted at: adam.brett@lestrangeandbrett.com

Quote: dangerous