Employment Law: Without Prejudice?

When faced with an underperforming employee, the offer of a pay-off in an "off the record" chat may sometimes appear to be the best option to avoid the stresses, strains and management time involved in the performance improvement procedure. A meeting may be called where settlement options under the description of "without prejudice" are offered. While this approach may still be worthwhile in certain situations, employers need to be careful at any such meeting.

The without prejudice principle can be used to protect "off the record" discussions so long as a genuine dispute exists between the parties and the without prejudice communication is a true attempt to settle the dispute. The principle is designed to encourage frank discussion and aid settlement.