Is This Discussion “Off The Record”?
About the Author:
Mark Donovan
Barrister Specialising in Employment Law And Litigation
Mark specialises in Employment Law and Civil Litigation. He is a graduate of the University of Auckland with bachelor degrees in Arts and Law (Honours).
“Brian,” the boss addresses him as he sits down at the boardroom table. “We need to have a chat about your future at XYZ Limited.” Brian’s face goes white. He imagined he’d have another 20 years left at XYZ
At least another five, until he had broken the back of his mortgage. Then he might look for other roles, new challenges. But his boss’s early-morning tone suggests that plan is heading for the recycle bin. “This isn’t easy,” Brian’s boss continues in solemn tones, “so can we agree that this discussion is off the record?”
Brian wonders what his boss is asking.
Is he suggesting this conversation can never be mentioned again? What if Brian wants to get legal advice? And what happens if Brian refuses to agree to keep this chat “off the record”? Will his boss dismiss him? He obviously wants to hear what his boss has to say. But how should he respond to his boss’s request?
WHAT’S THE BENEFIT?
Why would Brian’s boss want to keep their chat under wraps?
He wants to have a frank discussion with Brian about his performance. He wants to suggest to Brian that his future with the company is in jeopardy. Yes, he knows there is a proper process to follow to address Brian’s poor performance.
But following the correct process will take time. It would be easier on everyone if Brian agreed to leave of his own accord.
So he thinks that a frank chat with Brian, coupled with the right incentives, will persuade him to agree to leave.
It’s risky, though. If Brian objects, he could point to such a discussion as the basis for resigning and claiming constructive dismissal.
Yet, if the discussion can never be mentioned again, Brian couldn’t do that. If it is kept off the record – between just them two – his boss has nothing to fear. There’s no doubt that frank discussions about where an employment relationship is heading are useful. That’s why what is said at mediations is kept confidential.
But can you claim this cloak of confidentiality by just declaring a discussion is “off the record”?
HOW “OFF THE RECORD” CHATS WORK
Just telling someone, or demanding, that your conversation with them is “off the record” will not work. They must agree to keep the discussion confidential.
That’s because it’s unfair for one person to impose confidentiality on someone else without their agreement.
Such chats, also known as “without prejudice” discussions, cannot be referred to in court proceedings. Even though they may be damning evidence, the court won’t take notice of them.
But a bare agreement between two people that their discussion is “off the record” is not enough either.
In the employment context, for a discussion to be truly “off the record”, there must not only be agreement, but also:
a serious employment relationship problem that could give rise to litigation; and
the possibility that the litigation could be affected by something said during the discussion.
In short, there doesn’t have to be a formal dispute, or a personal grievance raised. The fact that Brian’s boss has concerns about his performance may be enough.
And if his boss is going to suggest he resigns, that is a statement that would be useful to Brian in proving constructive dismissal.
So it is highly possible that Brian’s boss is right to think a frank conversation with Brian could be kept confidential. It hinges on Brian’s agreement to the request. Brian need not feel that he has to agree to the “off-the-record” chat with his boss.
But if he doesn’t agree, he may never know what his boss is really thinking.
CONCLUSION
Having an “off-the-record” discussion is a useful way to diffuse difficult employment relationship problems.
But it has to be handled with care. Not every conversation labelled “off the record” is necessarily that.
There must be an employment relationship problem, the possibility of litigation, and agreement to keep the discussion confidential. Without those elements, whatever is said in the discussion may be cited in legal evidence.
Barrister
09 550 9854
Barrister specialising in Employment Law and Litigation
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