A grievance alone does not put you and your employer in dispute.
“EATStands for Employment Appeal Tribunal. It hears appeals from employment tribunal decisions on points of law, not on the facts. It is not a way of simply asking for a second opinion on the outcome. ruled the without prejudiceA legal principle that allows parties to have settlement discussions without those discussions being used against them later in tribunal proceedings. It only applies where there is a genuine dispute a... label did not protect the meeting; the evidence was admissible”
Raising a grievanceA formal complaint raised by an employee against their employer, triggering a legal obligation to investigate and respond. does not, by itself, put you and your employer in dispute, so a meeting your employer calls "without prejudice" is not automatically protected if your grievance has not genuinely been dealt with first.
- If your employer moves straight to a settlement conversation before addressing your grievance, that conversation may still be usable as evidence later, whatever label your employer puts on it.
- Keep a written record of any meeting where your employer suggests ending your employment, including what was said at the start and what was offered.
- If you are unsure whether a meeting was genuinely protected, get advice before responding to any offer or signing anything.
The situation
An employee raised a grievance about how she had been treated around two periods of maternity leave, saying she had been discouraged from returning to her old role and treated unfairly because of her maternity leave. Her employer's response was to keep her away from the workplace for the whole time it took to look into that grievance, and when it finally called her back, rather than let her pick up her old duties, it had already cut off her computer access and summoned her into a meeting the moment she arrived. At the start of that meeting, before her grievance had been addressed at all, her employer said the discussion was "without prejudice" and suggested she leave her job with a severance payment.
What the tribunal found
The Employment Appeal Tribunal held that the without prejudice rule, which normally stops settlement talks being used as evidence, only applies once there is a genuine dispute between the parties. Raising a grievance does not, on its own, create that dispute. Because the employer had not dealt with the grievance and instead moved straight to proposing an exit, there was no dispute yet for the meeting to be settling, so the "without prejudice" label did not protect it. The tribunal was allowed to hear what was said in that meeting.
BNP Paribas v Mezzotero [2004] IRLR 508 | Employment Appeal Tribunal | 30 March 2004