Historically employers have been concerned over without prejudice discussions and whether they can be relied on later. Some employers are scared of saying the wrong thing or whether they are doing the right thing. The difficulty with without prejudice is that there has to be a dispute between the parties. Something that in itself can create satellite litigation.
The case of Portnykh v Noruma International plc came before the EAT recently and it was held that correspondence between and employer and employee that was marked without prejudice could not be admissible in the employee’s claim for automatically unfair dismissal before the Employment Tribunal. They took a different view to the Employment Tribunal and found that the Judge had erred in determining that there was no dispute between the parties. Where the employer proposed to dismiss the employee for misconduct and negotiated about the dismissal being categorised as a redundancy with an ex-gratia payment there was a present or potential dispute. This was regardless of how amicable the negotiations appeared to be.
The EAT also said that the unambiguous impropriety exception to the without prejudice rile will not apply simply because one party would be disadvantaged by the exclusion of relevant evidence.
Now of course employers also have the option of the protected conversation which cannot be used as evidence in an unfair dismissal situation provided they do not exhibit improper behaviour such as threatens, unreasonable deadlines etc. More commonly these have been used in settlement agreement scenarios where the settlement agreement is presented to the employee.