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You won’t be surprised to learn that the answer is “yes, you can raise a grievance, but…”
Every employee has the right to raise a grievance but circumstances matter, as does what’s been discussed about your settlement agreement so far. Let us explain.
The impact of ‘without prejudice’ conversations…
If your employer has already asked to have a discussion with you on a ‘without prejudice’ basis regarding an existing dispute, and if you have had that discussion, then it’s possible the content of that conversation cannot form evidence at any subsequent tribunal etc.
For example, say your employer has made a disciplinary allegation against you regarding your conduct. Say they then offer you a settlement agreement, request a ‘without prejudice’ conversation with you, and that discussion then takes place. The fact of the matter is you will not be able to raise the contents of that discussion at a later grievance that you may raise. In fact, you won’t even be able to mention that a settlement agreement was offered to you.
What you need to be aware of, however, is that many employers misunderstand the protection they get from holding a ‘without prejudice’ conversation. The confidentiality only holds if the discussion is a genuine effort to find a solution to the existing dispute. Therefore they will have needed to follow procedure regarding informing you of their dispute with you to this point. A ‘without prejudice’ conversation cannot just be an off-the-record whinge about your performance.
Note, if the words ‘without prejudice’ have not been spoken or written down before you have the conversation about the settlement agreement with your employer, then the conversation you subsequently have can be used as evidence if needs be. Put simply, this is because you could not have agreed to a ‘without prejudice’ conversation in the first place.
As you can imagine, there are many scenarios that are possible here, including the potential for you to turn the tables and issue a grievance against your employer. But you need to take advice from a specialist employment law solicitor as soon as you can to ensure you don’t prejudice your position in any way.
