• Shamaila Gul

The Difference Between Without Prejudice and Protected Conversations

The end of an individual’s employment is a complex and often delicate time. This is particularly so when the departure is less than harmonious and both sides wish to manoeuvre for advantage. As such, discussions between employer and employee may affect future legal proceedings and – with that in mind - it may be felt that it would be better if they were protected from disclosure in order to facilitate a full and frank exchange of views, which is often conducive to reaching a mutually satisfactory conclusion.

However, merely stating that a discussion is ‘off the record’ will not make it so; that phrase is not a legal one and assuming so may cause real difficulties for an employer further down the line. If these conversations are held, then there are only specific circumstances in which what is discussed can be protected from disclosure.

The two legally recognised terms are ‘without prejudice discussion’ and ‘protected conversation’. Both of them have the same aim but each applies to different situations.

Without prejudice discussions

This means that if there is a dispute between the employer and employee, statements and discussions that arise out of an honest attempt to resolve that dispute can’t be used as evidence if the dispute ends up in a court or employment tribunal.

A without prejudice discussion should only take place if there is an existing dispute. This is key when having an ‘off the record’ discussion as an employer may expose themselves to risk if they attempt to have a protected conversation with an employee when an existing dispute is in place.

The term ‘dispute’ will not include having an ‘off the record’ discussion with an employee who has not been performing. This can cause a multitude of problems, including the employee making a claim of constructive unfair dismissal and an argument that any dismissal due to under-performance was pre-determined and, therefore, unfair.

Many employers will assume that there is a dispute if they are in receipt of a formal grievance. However, this is not necessarily the case. An employer can decide to uphold the employee’s grievance, therefore resolving any dispute between the parties.

In addition, a dispute does not have to mean the employee has submitted a formal claim. The employee and employer, however, do need to have considered that legal action may be taken if an agreement can’t be reached and the information being conveyed between either party must be as part of a genuine attempt to resolve the dispute.

Protected conversations

A protected conversation should be used for ‘off the record’ discussions with an employee when there is no dispute.

Section 111A of the Employment Rights Act 1996 states that an employer or employee can enter into discussions around ending the employment relationship on agreed terms, without those discussions being used as evidence in an employment tribunal in an Unfair Dismissal claim.

Any offer made and discussions held in respect of terminating employment with the employer on agreed terms, usually by settlement agreement, including with any staff involved such as different managers and Human Resource Staff, will be rendered inadmissible by Section 111A.

It should be noted, however, that Section 111A only applies in respect of ordinary unfair dismissal claims. Evidence that cannot be disclosed under Section 111A can be disclosed in a parallel claim, for example, a separate claim for discrimination or even in a case of 'automatic' unfair dismissal, for example where dismissal is alleged to be due to whistleblowing.

Employers should also bear in mind that such conversations will not be protected where there has been ‘improper behaviour’. This can include any conduct that could amount to:

  • The threat of, or actual physical assault or violence.

  • Bullying or intimidation.

  • Harassment, offensive language or aggressive behaviours.

  • Intimidation and putting undue pressure on a party.

  • Discrimination.

Why are protected conversations needed?

When an employee’s job comes to an end, the employer may want to get things sorted out as amicably as possible, rather than have the matter dragged through the disciplinary process, capability hearing or redundancy. They may have come to the realisation that things are not working out and would rather have a quick, clean break to enable them to move on; this may also avoid detrimental effects on staff morale if a particular employee remains in post while internal procedures grind on. It may also be the case that, while the employer/employee relationship has broken down irretrievably in the opinion of both parties, there is not enough evidence to start formal internal procedures.

Additionally, the employee may feel, considering the prospect of the formal disciplinary and redundancy process, that their interests would be better served by a quick, clean break that would let them move on to another job. They would therefore wish to offer the employer an agreed departure that would negate the time and expense otherwise incurred.

The sorts of conversations that will be had during these situations will, as can be imagined, cover sensitive matters which neither side will probably want made public in a tribunal or court.

What should the employer do?

When this sort of situation arises, the first thing the employer should do is raise with the employee the opportunity to opt for a without prejudice discussion or protected conversation, explaining what this means and what they would be agreeing to. If they choose not to proceed with this, the conversation can be held on an open basis, or the meeting can be rearranged, if the employee needs more time to consider their options.

Labelling discussions "without prejudice" will not necessarily mean that the rule will come into effect. The document or discussion in question must form part of a genuine attempt to settle the dispute in question. Conversely, not using the label “without prejudice” will not mean that the rule does not apply.

If there is any ambiguity about whether a discussion or document is without prejudice, the court or tribunal will examine what can be discerned about the intentions of the parties when they were having those discussions. Therefore, using the wording “without prejudice” will at least show to the court or tribunal that the intention was present and that the rule could well apply.

Not all correspondence between the parties will be without prejudice. Some may well be open and other communications remain protected. Therefore, the employer needs to make sure that all communication is appropriately marked so that the intentions of both parties can be identified if queries arise.

Waiving without prejudice

“Without prejudice” protection can only be set aside or waived if all parties to the communication agree. This means that if one party attempts to use that communication in evidence, the other party can override this if they so choose. It’s important to remember that if a particular communication’s without prejudice protection is waived, then everything in that communication becomes admissible in a court or tribunal, not just the parts that either party deemed to be so.