The principle underlying a "without prejudice" meeting is to create a space where both parties can engage in candid, open discussions aimed at resolving an existing dispute.
The objective is to facilitate negotiations without the risk that statements made during the conversation will be used against either party in subsequent legal proceedings.
Therefore, both parties are generally encouraged to speak freely, offer concessions, and explore potential solutions.
Recording a "without prejudice" meeting seems incongruent with this principle for several reasons:
1. Chilling Effect on Open Discussion: The knowledge that the meeting is being recorded may discourage parties from being fully candid. This can impede the free flow of dialogue, which is essential for resolving disputes.
2. Integrity of the 'Without Prejudice' Principle: Recording the meeting could raise questions about the commitment to keeping the conversation non-admissible in court. This could jeopardize the very protection that the "without prejudice" label is intended to provide.
3. Data Protection Concerns: Recording conversations may implicate data protection regulations, requiring explicit consent from both parties and a stated purpose for collecting such data. Failure to adhere to these regulations could introduce additional legal complexities.
4. Perceived Imbalance of Power: In an employment setting, if the employer initiates the recording without mutual agreement, this could create a perception of power imbalance, potentially impacting the employee's willingness to participate genuinely in the discussion.
5. Undermining Trust: Trust is a critical component in any negotiation, and the act of recording may be perceived as a lack of trust, which could in turn affect the quality and outcome of the dialogue.
Given the delicate nature of these discussions and the legal protections they are intended to provide, recording a "without prejudice" meeting generally appears inconsistent with its purpose.
If any party feels that a record of the meeting is necessary, this should be agreed upon explicitly, preferably in writing, prior to the meeting, and both parties should be clear on how the recording will be used or stored. Nonetheless, legal consultation is often advisable to ensure that the principles and protections of a "without prejudice" conversation are fully understood and upheld by all involved.