Tips for using a without prejudice discussion

If you want to get rid of an employee from your company, it’s worth considering the use of a without prejudice conversation.

The beauty of this kind of discussion is that it is off the record, in that it is in most cases inadmissible as court evidence.

This means that you avoid many of the legal risks that can play out during a typical employee termination.

However, before you go ahead and use a without prejudice conversation you need to understand exactly what it is and what it isn’t, and the contexts in which it is best applied.

Read on to understand more about this specific aspect of employment law with top tips from our dedicated team of business lawyers in Melbourne.

While a without prejudice discussion can provide a certain level of legal protection, you should consult a commercial lawyer to make sure you have covered all your bases.

What is a without prejudice discussion used for?

Business lawyers in Melbourne will tell you that the law encourages parties to settle their disputes without court intervention.

The phrase “without prejudice” refers only to the communication used to negotiate a settlement.

So, any legal privilege or protection applied by the term is constrained to that function – negotiating a settlement.

It, therefore, allows you to potentially resolve a dispute with an employee without a commercial lawyer getting involved.

Though, it’s always good to have business lawyers in Melbourne on hand when dealing with intricate hiring and firing functions.

Tip 1 – Don’t berate your employee

A without prejudice discussion is not an excuse to berate your employee. Just because you think it is off the record doesn’t mean you can get away with harassment.

In the end, if such behaviour is deemed as not part of negotiating a settlement, then it can still get you in trouble in court.

Don’t make your commercial lawyer’s job harder than it already is, always behave with courtesy and common sense towards your employees, even if you do want to fire them.

Tip 2 – Give your employee the option

It’s important to give your employee the option to have a without prejudice discussion with you.

That means that you need to ask them a question, like “would you be interested in having a without prejudice conversation about what the company could offer you if you were to leave?”

The last thing you want is for the employee to have any grounds to say that you pressured them into negotiations or had any kind of constructive dismissal agenda.

Giving your employee the choice also opens the negotiations on a more positive note, which could bode well for what is to come.

Tip 3 – Use a deed of release

A deed of release is a contract that stipulates what you are offering the employee in addition to their contractual entitlements.

Importantly, it will also stop the employee from taking legal action against you (except on things relating to worker’s compensation and superannuation, which are areas where you are not protected).

A deed of release formalises what has been agreed during the discussions so that both parties know where they stand and what to expect.

Talk to your trusted commercial lawyer about drawing up a deed of release that offers as much protection to your business as possible.

Tip 4 – Put it in writing

Some employees will not predict an exit negotiation, and for them, it may come as a surprise.They may need time to think through their options before committing one way or the other.

You need to be prepared in this circumstance with a without prejudice offer in writing that they can take home and think about.

This offer should be marked “without prejudice” and there needs to be a deadline to the offer, with a statement to the effect that if it lapses, it is void.

Your business lawyers in Melbourne can help you with drafting such an offer in writing.

Tip 5 – Put other options on the table

For your without prejudice offer to be utterly compelling, it may be useful to also consider more formal interventions and investigations into your employee’s performance.

You may also discuss with them the potential for:

Termination of employment
Initiating a performance improvement plan
Enrolling them in mediation
Hiring an independent investigator
Having them attend a medical examination

If these possible eventualities seem unsavoury to your employee, it may just persuade them to take your offer.

Before putting different options on the table, always speak with your business lawyers in Melbourne to ensure you are doing everything lawfully.

P&B Law – Your preferred business lawyers in Melbourne

Do you have trusted business lawyers in Melbourne, ready to help you in any business situation you find yourself in? Here at P&B Law, we have a wealth of knowledge and experience in commercial law. That’s why our clients regard our advice so highly.

If you need help drafting contracts for employees, a commercial lawyer from our team can assist you, providing all the advice you need to ensure you comply with all relevant legislation and lower your business risk.

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