Without prejudice or protected conversations

"Without prejudice discussion" and "protected conversation" are two phrases often used interchangeably to refer to an off-the-record discussion with employees.

Whilst this is understandable due to the similarities of these two types of discussion, employers risk using the wrong term and leaving such discussions not being afforded the intended protection by not appreciating the slight differences and conditions.

If you are looking to bring an employee’s contract of employment to an end, you may want to have an ‘off the record’ discussion with a view to agreeing acceptable terms on which to part ways, thus avoiding a time-consuming management procedure.

When might you consider without prejudice or protected conversations
Sometimes employment relationships do not work out. There are procedures in place to address many concerns, e.g. capability or disciplinary procedures. However, employers sometimes wish to resolve matters more swiftly or amicably and without the need for a formal process.

In such situations, employers can propose an off-the-record discussion with the employee, during which the employer (and the employee) can discuss the employment relationship and propose bringing an amicable end to this on specific terms. There is usually a negotiation period between employer and employee regarding the terms, with the hope these can be agreed "off-record".

If a settlement is reached, the terms agreed should be summarised in a legally binding document (a settlement agreement), which both parties sign to accept the terms. A settlement agreement waives an employee's right to bring a claim against their employer in an employment tribunal, so an employee must take legal advice regarding the terms of such an agreement to make it binding.

The discussions mentioned above are usually conducted under the title of a “without prejudice discussion" or "protected conversation", so they are afforded protection from the discussions being referred to in any potential future employment tribunal claim. However, which is the correct term to use?

Without prejudice discussions
For a without prejudice discussion there must be an existing dispute between the employer and the employee at the time of discussion. There are no clear rules regarding the term "dispute" for employers. Before engaging in any discussion, employers need to consider the specific situation to determine if there is a current dispute or could be a dispute between the employer and the employee. For example, if the employer and employee disagree on the employee's conduct, this could be a potential dispute.

There are also other criteria which should be met for the without prejudice protection to apply, including that the employer and employee must approach without prejudice discussions with a genuine attempt to settle the existing dispute between them.

Protected conversations
Protected conversations are a more recent addition introduced under S111A of the Employment Rights Act 1996. Under this legislation any evidence of pre-termination negotiations is inadmissible in any proceedings before an employment tribunal for unfair dismissal.

Protected conversations were introduced to enable employers (and employees) to engage in an off-the-record discussion when there is no ongoing dispute. Therefore, protected conversations can often be suggested unexpectedly. However, they have the same goal in looking to agree on an amicable end to the employment relationship via a settlement agreement.

Proceed with advice into these discussions
However, it is essential to remember that whilst a discussion may offer protection as an ‘off-the-record’, this does not mean that protection cannot be taken away.

If the employer or employee engaging in discussions do not conduct themselves properly, the protection can be lost because it would be unfair to allow such matters to remain confidential. For example, if either side imposes undue influence on the other, coerces or even blackmails, the protection will be lost.

Whilst the aim of having one of these types of discussion is the same, there are differences in how to approach the conversation. Employers need to ensure that they approach the discussion using the correct terminology to ensure that any discussions remain ‘off-the record’.

Need further advice?
As you can see there are ways to approach ending the employment relationship without going through a formal process.

If you have a situation where you are considering entering into without prejudice or a protected conversation, please get in touch for further advice.

If you have any questions about this update, please get in touch.

Have a good week!

Jo

Without prejudice or protected conversations – what’s the difference?