When Can A Termination Discussion Be Without Prejudice?

For a discussion to be "without prejudice" there must be an existing dispute between the parties. A recent EAT case helpfully clarified when a grievance will count as a dispute for these purposes.

The Employment Appeal Tribunal (EAT) has provided some helpful clarity over when a "dispute" exists between an employer and employee, allowing the employer to put forward settlement terms on a confidential without prejudice (off the record) basis. Importantly, the EAT has confirmed that the Mezzotero case does not mean that a grievance is never enough to create a dispute, that proposing termination is permissible even if the employee wants to keep their job, and that the protection of the without prejudice rule is only lost in the clearest of cases of unambiguous impropriety.