If a manager is not happy about the performance of one of his or her workers, it is tempting for the manager to take the employee for a “quiet chat over coffee” rather than calling a formal meeting or writing a formal letter. The risk of doing this – if the chat is not protected by the legal privilege of ‘without prejudice’ – is that the employee might claim that the manager has constructively dismissed them by what the manager said.
The manager often thinks that because she or he says the chat is confidential, the employee cannot later use it against the manager, especially if litigation arises. The fact is that the chat over coffee will only be confidential (i.e. “without prejudice” or “off the record”) if some basic rules are followed.
As one senior lawyer has recently noted in the context of exiting senior executives “A confident Chair who professes to know their Chief Executive well and is confident in their rapport and ability to discuss matters maturely has too often been the forerunner of the receipt of a solicitor’s letter shortly thereafter”.
Some basic rules:
1. Ensure that a dispute exists or, at the very least, a serious problem in the employment relationship that could, ultimately, give rise to litigation. This should be “a “difference” or “negotiation” between the parties
that is serious enough to warrant a without prejudice conversation.
2. Before starting the discussion, give the other party (usually the employee) an idea of what it is you want to talk confidentially about. For example: “I am not happy about your attitude towards me over the past few days and I would like to talk to you confidentially and off the record [or you could say “without prejudice”] because
I have some ideas on how we can approach this issue.”
3.“Without prejudice” are not magic words, which, when uttered or written, will protect the conversation.
4. While the words “without prejudice” do not need to be used, there must be an understanding between the parties that what is being said cannot later be used in litigation.
5. If your employee does not agree to participate in such a discussion, abandon your attempt and decide whether to make a more formal (‘on the record’) approach.
6. Don’t wait till half way through or at the end of the discussion to announce that everything that has been said is without prejudice (although you can both agree that is the case).
7. Don’t confirm the contents of the ‘without prejudice’ discussion in writing, unless you repeat the words in writing, “without prejudice’.
8. Be specific about what is being discussed without prejudice and what is not being discussed without prejudice. For example, the performance problems might be discussed ‘on the record’ but the exit strategy might be discussed ‘off the record’. Without prejudice is the more correct term but in common language it is used interchangeably with “off the record”.
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