It is important to be aware that there is no such thing as a protected conversation in Northern Ireland. That being said, where there is a genuine existing dispute with an employee, employers can make use of “without prejudice” discussions in order to navigate an employee’s exit from the business. If an employer is minded to do this, this must be conducted extremely careful. If it is not carried out properly, an employee may be able to argue that the discussion was not genuinely “without prejudice” and rely on the content of same to support a claim for unfair dismissal. If it is conducted properly however, it affords both the employer and employee the opportunity to have a full and frank discussion about the situation and explore an exit package. This could prove particularly useful to employers during the COVID-19 pandemic.   

OVERVIEW OF WITHOUT PREJUDICE PRINCIPLES IN NORTHERN IRELAND 

A helpful overview of the law on without prejudice discussions in Northern Ireland was provided in the case of David Rice v Dignity Funerals Limited (Case Ref: 02651/16IT). 

In summary, the Tribunal highlighted: 

The following authorities are relevant in relation to the without prejudice issue:

(1)        Framlington Group Ltd and Another v Barnetson [2007] IRLR 598 (CA).

(2)        BNP Paribas v Mezzottero [2004] IRLR 508 (EAT).

(3)        McKinstry v Moy Park and Others [2015] NICA 12.

The scope of the without prejudice rule is set out in Harvey.  The rule is that without prejudice communications cannot be disclosed and are inadmissible in evidence.  The following principles can be gleaned from the authorities.

There are two reasons underlying the rule:

(1)            A public policy reason which relates to the desirability of encouraging litigants to settle their disputes rather than to litigate to a finish.  To this end the rule operates to ensure that negotiations are not constrained by a fear that what is said in negotiations might later be used against a party in evidence if negotiations fail.

(2)            That there is an express or implied agreement between the parties to the communication that the communications in negotiations will not be admissible in evidence.

One does not have to use the words “without prejudice” in order for the “cloak” to fall.  The tribunal must look at all the circumstances to establish whether it was clear that the parties were seeking to compromise a dispute.

There are two elements which must be satisfied:

(1)            There must be an existing dispute between the parties at the time the without prejudice communication is made; and

(2)            The communication must be a genuine attempt to settle that dispute.

There are limits on abuse of the rule in that it cannot be used to cloak perjury, blackmail, or other unambiguous impropriety.  It is clear from the authorities that the unambiguous impropriety exception should only apply in clear cases, it is not to be interpreted widely, and it means more than a party being disadvantaged by the exclusion of the evidence.  Abuse has been defined in the authorities as unambiguous impropriety, perjury and blackmail.  

If the parties are not legally represented there may be doubt as to whether an employee genuinely agreed to enter discussions on a without prejudice basis.

In the McKinstry case the Northern Ireland Court of Appeal reviewed the relevant authorities.  The Tribunal was keen to emphasise the following:

            (1)        “The critical question for the court in such a case is where to draw the line between serving that interest and wrongly preventing one or other party to litigation when it comes from putting his case at its best.  It is undoubtedly a highly case sensitive question, or to put another way, the dividing line may not always be clear”.  (Paragraph 30 cited from Barnetson).

            (2)        “Apart from any concluded contract or estoppel, one party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety’ (the expression used by Hoffman LJ in Forster v Friedland [1992] CA Transcript 1052)”.  (Paragraph 33 cited from Unilever).

            (3)        “The court will doubtless have to adopt a pragmatic approach, balancing the primary consideration of ensuring protection for parties involved in true settlement negotiations against the need to ensure that the privilege afforded by the rule is not abused”.  (Paragraph 34 cited from Foskett).

            (4)        “… the concept of without prejudice discussion is a complex and challenging one even for lawyers and the judiciary.  Whilst the agreed Statement of Facts declared that the concept was explained to the appellant and he confirmed his understanding of the principle and agreed to continue, this begs the question as to what precisely he did understand and what it was to which he had agreed?  What was the explanation given to him of the concept of “without prejudice”?  Was it a legally accurate one?  Without oral evidence, based purely on the stark statement of the agreed facts and absent some clear evidence that the meaning of “without prejudice” communications was properly explained to the appellant, we consider that it was not open to the Tribunal to conclude that there was an express or implied agreement that the said discussions were to be “without prejudice”.  (Paragraph 47 – emphasis added).

            (5)        “… even if there was an extant dispute, can the discussion have been agreed to be “without prejudice” when that agreement was made before the dispute had been outlined or crystallised?  Obviously the dispute had not been defined before appellant arrived at the meeting because he was unaware of the purpose of the meeting”.  (Paragraph 50).

            (6)        “… it seems to us arguably inescapable that an agreement to the without prejudice principle made in vacuuo before any attempt was made to outline what the alleged dispute was nullifies any meaningful agreement to discuss an unknown dispute on a without prejudice basis”.  (Paragraph 51).

The case of SCA Packaging v Boyle [2010] (HL) gives guidance on when it is appropriate to deal with any issues separately as a preliminary point.

PRACTICAL ADVICE FOR EXIT DISCUSSIONS 

Employers who are considering "without prejudice" discussions should: 

• Seek legal advice on whether any discussions are likely to be deemed “without prejudice”
• Identify the employee’s contractual entitlements if their employment is brought to an end 
• Consider what exit package they are prepared to offer 
• From the outset, make it clear to the employee that any correspondence/discussions are “without prejudice”, clearly explaining the meaning of “without prejudice” in simple terms 
• If any meetings occur (whether in-person or virtually), warn the employee that such discussions are “without prejudice” and should not be recorded 
• Encourage the employee to seek independent legal advice in respect of any proposed settlement agreement 

With homeworking becoming the new norm, employers may wish to consider the introduction of a homeworking policy and/or homeworking clause into contracts of employment.

Things to Consider

·     Reporting procedures: A suitable reporting and appraisal system should be agreed at the outset to measure the quality and quantity of the employee's activities.

·     Hours of Work: Two potential approaches depending on the nature of work:

[Your normal hours of work are between [TIME] and [TIME] on [DAYS]. You may be required to work such additional hours as may be necessary for the proper performance of your duties without extra remuneration.

OR

You are required to work [NUMBER OF HOURS] each week, to be worked at such times and on such days of the week as you may determine, provided that you shall be available at home between such hours as we may reasonably specify from time to time. You may be required to work such additional hours as may be necessary for the proper performance of your duties without extra remuneration.

·     Rest Breaks: Under the Working Time Regulations (Northern Ireland) 2016, workers are generally entitled to a rest break of 20 minutes when working a shift of more than six hours. Since there will be no one to oversee whether homeworkers take their breaks, it is important to make it clear that it is the homeworker's responsibility to ensure they take their rest break.

·     Healthy & Safety: Employers must conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, including homeworkers, to identify hazards and assess the degree of risk to them or anyone else who may be affected by their work. There are also additional health and safety duties if the employer provides the homeworker with equipment.

·     Expenses: Two potential approaches:

[We shall reimburse all reasonable expenses properly and necessarily incurred by you in the course of your employment, including telephone [and broadband internet access] charges, subject to production of itemised telephone bills and such other evidence as we may require. For the avoidance of doubt we shall not reimburse travel expenses from your home to [any of] our offices in [PLACE].

OR

We shall pay a contribution of £[AMOUNT] each month towards the utility costs at your home and telephone [and broadband internet access] charges [AND ANY OTHER EXPENSES]. For the avoidance of doubt we shall not reimburse travel expenses from your home to [any of] our offices in [PLACE].]

·     Equipment: There is no legal obligation on an employer to provide the equipment necessary for homeworking. However, with greater penalties and fines under the GDPR for data breaches, employers may wish to have as much control over an employee's equipment as possible.

·     Confidential Information & Data Protection: As confidentiality is more difficult to police when an employee is working from home, it is important to consider what specific measures employees should take to ensure the security of confidential information. There are also significant data protection implications for homeworking arising from the GDPR and the Data Protection Act 2018. Employers should accordingly consider the following:

·      Installing encryption software on the employee's computer.

·      Password-protecting information held on the home computer.

·      "Locking" the computer terminal when it is not in use.

·      Keeping all paper files in locked filing cabinets.

Useful resources

Advice for employers on protecting home workers - Advice from HSE (GB)- https://www.hseni.gov.uk/articles/advice-employers-protecting-home-workers-advice-hse-gb

Unison- Homeworking Guide- https://www.unison.org.uk/content/uploads/2017/04/Homeworking-Guide.pdf

ACAS Sample Homeworking policy- https://www.acas.org.uk/example-homeworking-policy

Redundancies are sadly inevitable in Northern Ireland over the next few months. Indeed, yesterday, The Telegraph reported that experts have predicted that the UK will see three waves of unemployment as a result of the COVID-19 pandemic. Statistics released by the Northern Ireland Statistics and Research Agency this morning also confirmed that the number of proposed redundancies since the start of March in Northern Ireland is now over 3,000. To avoid claims for unfair dismissal, employers should construct a careful plan, develop objective criteria and ensure a fair process is followed. This article provides a basic overview of things to consider. 

KEY LEGISLATION- NORTHERN IRELAND

The key provisions in respect of redundancy situations in Northern Ireland are as follows:

The Employment Rights (NI) Order 1996

Article 10- Special provisions for redundancy payments 

Article 106- Redundancy and dismissal while on maternity 

Article 107C- Redundancy and dismissal while on adoption leave 

Article 107L- Redundancy and dismissal while on shared parental leave

Article 137- Redundancy in general 

Articles 170-181- Redundancy Payments 

Articles 197-200- Other provisions about redundancy payments 

Articles 216-226- Procedure for handling redundancies 

BASIC OVERVIEW

STAGE ONE: PLAN

·      Is there a genuine redundancy situation? 

·      Establish how many redundancies are being proposed. Is there a notification requirement/need for collective consultation?

·      Develop a proposed set of objective selection criteria if selection is necessary 

·      Compile a list of alternative vacancies available

·      Consider whether there are any employees who are pregnant, or on maternity/adoption shared parental leave as special redundancy rules apply to such individuals

·      Inform employees at risk of redundancy. Include a copy of the selection criteria and scoring guidelines if relevant

ISSUES TO ADDRESS WITH EMPLOYEES AT RISK

·      Explain reasons for the potential redundancies.

·      Explain how many jobs are at risk of being redundant (making sure it is clear that the redundancies are only a possibility at this stage).

·      Explain that ways of avoiding the redundancies are being explored 

·      Ask the employees for suggestions of ways to avoid redundancies.

·      Consider asking for volunteers for redundancy 

·      Explain the pools and proposed selection criteria (if relevant).

·      Explain the right to take time off to seek alternative employment.

STAGE TWO: SELECT 

·      Score each potentially redundant employee using the selection criteria and scoring guidelines. 

·      Issue letters to employees provisionally selected for redundancy & invite them to a meeting to discuss their selection 

SELECTION LETTER 

·      Ensure that the letter is reasonably detailed, setting out the reasons for the redundancy situation and for provisionally selecting the employee for redundancy, and summarising the consultation that has been held with them to date.

·      Explain that no final decision has been made at this stage, and that a further meeting will be arranged if their selection for redundancy is confirmed.

·      Include an invitation to bring a trade union representative or colleague to the meeting.

·      Allow the employee a reasonable opportunity to consider this information before holding the meeting.

STAGE THREE: CONSULT

1. First individual meeting

• Consult with each employee individually about their scores, their proposed selection and the terms of the redundancy
• Consider any comments from the employee, particularly in relation to scoring
• Discuss details of any available alternative roles within the business 

2. Follow Up

After the initial meeting, follow up any suggestions made and consider any representations made.

3. Second individual meeting

• Where a decision has been made to make an employee redundant, invite that employee to a further meeting.
• Allow the employee to be accompanied by a trade union representative or work colleague.
• Assuming that nothing has changed, confirm that the employee has been selected for redundancy.
• Go through the redundancy package.
• Remind the employee of the right to time off to seek alternative employment.

4. Issue dismissal letter

• Write to the employee confirming the decision to dismiss them as redundant and specify the termination date
• Explain the calculation of the redundancy payment and any other payments to be made
• Confirm that the employee has the right of appeal. Explain how to appeal and the relevant time limit.

5. Appeal

• If employee appeals, invite them to attend a further meeting to hear the appeal.
• If possible, the meeting should be held by someone senior to the person who held the previous meeting(s).
• Allow employee to be accompanied by a trade union representative or work colleague.
• Following the meeting, write to the employee confirming the outcome of the appeal and that this is a final decision.

Detailed notes should be taken at all meetings held.

The law on redundancy is a complex area and there will undoubtedly be an influx of unfair dismissal claims arising out of redundancy situations which occur during the COVID-19 pandemic.

Common issues that often arise in unfair redundancy cases are: 

(1) no genuine redundancy situation

(2) unfair selection criteria/scoring

(3) failure to consider alternative vacancies 

(4) discriminatory reason(s) for dismissal 

(5) failure to properly consult    

The three articles above have been produced for general information purposes only and further advice should be sought from a solicitor regarding employment situations arising from COVID-19. 

Appeal against the ET’s decision permitting an amendment to claims arising out of a dispute over backdated holiday pay and deciding that the claims were brought in time. Appeal allowed.

Backdated holiday pay was withheld by the Respondent from the Claimants in connection with industrial action. The Claimants brought claims in the ET for discrimination on the grounds of religion or belief and for backdated holiday pay, and later amended their claims so as to characterise them as an alleged breach of the Employment Relations Act 1999 (Blacklists) Regulations 2010 ("the 2010 Regulations"). The ET considered that changing the claim to a "blacklisting" claim was consistent with the original claim and so permitted the amendment; and it concluded that the withholding of backdated holiday pay was an ongoing act, and so the claims were not brought out of time. The Respondent appealed on grounds including that (1) the ET failed to take account of Selkent Bus Co Ltd v Moore [1996] ICR 836 and erred in characterising the amendment as merely relabelling and clarifying the nature of the claim, rather than altering its substance, and (2) the ET did not deal adequately with the question of time limits.

The EAT held that the ET's decision to allow the amendment to introduce a claim under the 2010 Regulations was flawed. Accordingly, the matter would be remitted to a fresh ET for reconsideration of the nature of the original claim, the nature of the proposed amendment, whether the original claims were out of time, and whether the application to amend was made after expiry of the relevant limitation period.