HR Update - Behind closed doors

Sometimes, employee disputes mean a relationship has broken down so much that there is no going back.

One way to deal with this is to have a discussion with the employee on a 'without prejudice' basis. This means that anything said during the 'without prejudice' meeting cannot be used in a court or tribunal as evidence. The purpose of the meeting is to reach a settlement agreement, which is normally used to bring an employment relationship to an end in a mutually agreed way.

LEGAL VALIDITY

The following conditions must be met to ensure the settlement agreement is legally valid.

- It must be in writing.

- It must relate to a particular complaint or proceeding.

- The employee must receive advice from an independent advisor, usually a solicitor.

- The advisor must have insurance.

- The advisor must be identified in the agreement.

- It must state the applicable statutory conditions.

You must consider what you are going to offer in the settlement agreement. The offer would normally include a proposed financial payment and a reference. There are a few things to consider when deciding on how much money you may offer.

- Notice period and untaken annual leave.

- How much time it may take to resolve the problem if a settlement is not reached.

- The reasons for offering a settlement.

- The possible liabilities in dealing with any potential tribunal.

An employer is not obliged to provide a reference, but where it is being considered the parties need to consider an agreeable form and content for the reference.

When the employer and employee sign a valid settlement agreement the employee is then unable to bring an employment tribunal claim regarding any claim mentioned in the agreement.

However, settlement agreements are voluntary. Employees may not even want to take part in a 'without prejudice' discussion.

And a word of warning: don't try to do this on your own. Always take advice from HR or an employment law solicitor before you even consider having a 'without prejudice' discussion with an employee.

Jacqui Mann is MD of HR4 Nurseries, www.hr4nurseries.co.uk.