There are times when a without prejudice or protected conversation, (like the ones we have with employees when presenting a settlement agreement), can be raised in court, and can be used against you.
If anything said or done is improper or connected with improper behaviour, evidence of pre-termination negotiations can be raised at court if the tribunal considers just to do so.
So what amounts to improper behaviour?
The Acas Code on Settlement Agreements provides examples of improper behaviour although the list is not exhaustive:
o not giving reasonable time for consideration of a settlement offer;
o an employer saying before any form of disciplinary process has begun that if the offer is rejected then the employee will be dismissed; or
o an employee threatening to undermine an organisation's public reputation if the organisation does not sign the agreement, unless the provisions of the Public Interest Disclosure Act 1998 apply.
The tribunal is required first to make a finding that something has been said or done which amounts to improper behaviour and, then, go on to consider to what extent it is just and equitable for the matter to be admissible. It may not be the case that improper behaviour would make the whole course of negotiations admissible in evidence.
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