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‘Off the record’, ‘Without Prejudice’ and ‘Protected’ conversations – what are they? 20 Dec 2022

What’s the point of having an ‘off the record’ discussion?

The idea is that you and  your employer can have a frank conversation about your employment relationship, any issues and concerns either of you might have, whilst exploring the opportunity to resolve your differences, i.e. reach some kind of negotiated settlement. 

The benefit is that any ‘off the record’ conversations or correspondence cannot be referred to in any court or tribunal proceedings. 

But this protection is not absolute and can only be relied on in certain circumstances (see below).

The purpose of “Without prejudice” communications is to encourage and enable you and your employer to speak freely during settlement discussions to settle matters ‘out of court’. However, there must be an existing ‘dispute’ between you and your employer for the protection to apply. There is no legal definition of what does or does not amount to a ‘dispute’ for these purposes but, basically, you and your employer must be in, or have contemplated litigation if you could not reach an agreed settlement.  Further, any discussions must be a genuine attempt by parties to settle the dispute. Merely stating your case or criticising the other side’s case will not be enough. 

The protection of the ‘without prejudice’ rule will be lost where there is found to have been fraud, undue influence or some other impropriety (for example, perjury or blackmail) on the part of either party.  So be careful.

“Protected conversations”: more formally known as "Section 111A Pre-termination negotiations" have been around since 2013, but are often misunderstood. The aim was to give employers and employees greater flexibility to hold confidential discussions, and to end an employment relationship on amicable terms.

Unlike ‘without prejudice’ discussions, the benefit of a ‘protected conversation’ is that you can have one even where there is no existing dispute between you and your employer. 

The contents of a protected conversation or correspondence will not be able to be referred to in any proceedings if the only potential claim you  have is one for unfair dismissal.  So, if you might have any other type of claim e.g.  for discrimination, whistleblowing, breach of contract or an unlawful deduction of wages, then anything said as part of a purported ‘protected conversation’ can be referred to, and relied upon.

 

What happens if I am willing to leave my job on agreed terms? 

Usually, your employer will be offering to pay you a sum of money to leave your job in return for you agreeing to waive any claims you may have.  The mechanism for recording the terms you have agreed is in a legally binding document known as a Settlement Agreement.  In order for the Agreement to be binding, you (as the employee) must take independent advice on the terms and effect of the Agreement before you sign it. The adviser also has to confirm they have given you the necessary advice.   We have a Settlement Agreement Service  - further details can be found here.

You should be given a reasonable period of time to consider the terms and to receive the necessary independent legal advice. The Acas Code of Practice on Settlement Agreements suggests – as a general rule - 10 calendar days as a minimum).

Where there is found to be “improper behaviour” by the Employment Tribunal in relation to the offer or settlement agreement discussions, the protections of ‘without prejudice’ and/or ‘protected conversations’  will generally not apply. Improper behaviour includes, for example, bullying and harassment, discrimination, physical assault (or the threat of it) and other criminal behaviour. 

 

How should I prepare for a “without prejudice” or “protected conversation” meeting?

There are occasions when you (as the employee) might start a “without prejudice” or “protected” conversation, but it is usually your employer who will do so. 

If your employer invites you to a ‘without prejudice’ or ‘protected conversation’ meeting, they should allow you to be accompanied by a colleague, trade union official or representative. This is good practice, but it is not a legal requirement.

You do not have to attend such a meeting if you don’t want to.  Refusing to attend, e.g. because you are not well enough,  cannot be held against you. As an alternative to attending in person, you could ask your employer to put their proposal to you in writing. 

 

Ultimately, you do not have to enter into “without prejudice” discussions, or “protected conversations” if you do not want to.   That said, if your employer starts such a discussion with you, and you would like to know where you stand, or want to know more about what your rights are, join today and speak to one of our specialist Employment solicitors.

 

Disclaimer: The information and opinions within this guide are meant for general information purposes only.  They are not intended to constitute legal or other professional advice and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances.
 
If you want or require specific legal advice, join our legal advice service. Our employment specialists who will be able to provide expert advice and guidance on your issue. 

 

Duncan Snook Sq Duncan Snook
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