Is it really “off the record”?

Is it really “off the record” or “without prejudice”?

Conversations on a without prejudice basis are a useful tool in employment disputes. They allow parties to discuss resolution of their dispute frankly, safe in the knowledge that communications for this purpose are confidential and legally “off the record”.

It is not uncommon for employees and employers to refer to a conversation as “off the record” or “without prejudice” without understanding in what circumstances this protection will apply. Simply stating that a conversation is “off the record” is not enough to keep it confidential. In order for an employment conversation to be “without prejudice” or “off the record” there must be a genuine dispute, meaning a serious problem arising out of the employment relationship. Consider the following scenario:

Steve has recently been struggling with problems at home but thought he was still coping okay at work. One day his manager tells Steve that he wants to have an “off the record” chat. In the meeting Steve is told his performance is unsatisfactory and the employment relationship has become untenable.  However, to save Steve the indignity of dismissal, the employer is willing to let him resign instead.

Would this conversation be ‘off the record’? This question turns on whether there was a dispute on foot.  Steve’s manager, while perhaps secretly dissatisfied, had taken no steps to address Steve’s performance problems prior to ambushing him with a without prejudice conversation.  As a result, there was not yet a dispute as Steve was not even aware there was a problem. Consequently, this conversation would not be ‘off the record’ and could be used by Steve in a future personal grievance claim.

 

If you have any questions or queries in relation to this topic, please get in touch with the Watermark team directly. We are happy to advise you.

Kylie Hudson

Associate