‘Without prejudice’ vs ‘protected conversation’

Unknown to many, a ‘without prejudice’ conversation is not the same as a ‘protected conversation’. Knowing what each of them involve and the key difference between them could save you from a head in hands moment in future. The consequence of an employer getting the two wrong could mean that a conversation that was intended to be ‘off record’ is now being broadcasted to a Judge in an Employment Tribunal. Equally, an employee who’s none the wiser of the concept of each could find themselves in a situation where their key piece of evidence is inadmissible and cannot be relied upon in court.

Both types of conversations can be used to initiate an employee exiting the business while providing the employer with the comfort that their words cannot be used against them, and the employee a financial incentive to help them move on.

What is a ‘without prejudice’ conversation?

A “without prejudice” discussion occurs when there is a genuine attempt to settle an existing dispute. This pre-existing dispute could be a grievance, disciplinary allegations against the employee, performance issues, claims that Acas early conciliation have been notified about, or claims that have already been lodged with an employment tribunal.

The principle behind it is to allow an open negotiation to take place without the fear of these discussions being used as evidence in court or tribunal if the dispute is not resolved.

Therefore, once it has been agreed that a “without prejudice” discussion can happen (and it’s advised at this point of the meeting that the note-taker is taking down a good record of this agreement), the parties are free to openly communicate about the possibility of settling the dispute, and what that would look like. It is not necessary that a settlement is reached, for example the employee may decline all offers put to them, but the discussion itself will remain protected from being used as evidence in any future potential legal proceedings.

What is a ‘protected conversation’?

A “protected conversation” is a formal discussion about dismissal or termination. Introduced under Section 111A of the Employment Rights Act 1996, it allows employers to openly discuss potential dismissal or resignation with an employee without the conversation being used as evidence in any claim of unfair dismissal. Taking effect in 2013, it is a relatively new concept compared to “without prejudice” conversations, which have existed much longer under common law.

There is no requirement for there to be an existing dispute with a “protected conversation”, and an offer can be made to an employee to bring their employment to an end on agreed terms.

What are the key differences between them?

There are two key differences between a ‘without prejudice’ discussion and a ‘protected conversation’.

Firstly, a without prejudice discussion requires there to be a genuine attempt to settle an existing dispute. If there is no pre-existing dispute or the attempt to settle is not genuine, then there will arguably be no protection afforded. A protected conversation does not require either of these conditions to be met.

The second key difference is that protected conversations are focused on potential dismissals or termination of employment, and the protection will only apply to dismissal related matters, and will not apply to other unlawful conduct e.g., discrimination. In contrast, a without prejudice discussion will offer protection for settlement discussions relating to any dispute, not just dismissal related ones.

How to avoid the common pitfalls

The consequence of getting either conversation wrong could be costly, so it is vital as an employer that you are confident you are applying the right approach with the applicable legal tests.

I have set out below the main points to be aware of before either type of conversation is initiated, however, we strongly advise you to seek legal advice if you are at all unsure on the approach to take and how to conduct it.

Without prejudice discussion:

• There needs to be a pre-existing dispute
• Any negotiation must be a genuine attempt to settle, and it cannot simply be one party asserting their case against the other
• Expressly agree that the conversation is carried out on a without prejudice basis at the start of any verbal conversation, and any further written communication should clearly be labelled as such

Protected conversations

• Avoid any ‘improper behaviour’. This can include an employer putting an employee under pressure to leave, telling them they will be dismissed if they do not settle, using threatening words, or any form of intimidating behaviour. If this can be shown, the protection may be lost, and the conservation could be admissible
• Remember that the protection is limited to ordinary unfair dismissal claims only. An employee could refer to the conversation in other claims they may decide to bring e.g., automatic unfair dismissal or discrimination.

We can help

While both "without prejudice" and "protected conversations" offer legal protection for sensitive discussions, they are distinct tools used in different contexts. Understanding the differences and ensuring proper conduct in these conversations is vital to avoid unintended legal consequences.

We hope this article has provided you with a starting point to understanding these two terms, but if you would benefit from more detailed advice and the practicalities of having these conversations, please do call us on 0117 290 0905 or explore our website to see the services we can offer.