Without Prejudice v's Protected Conversation: What's the Difference?

There are certain situations where an employer may want to have an off the record conversation with an employee, meaning their correspondence is not admissible in any open correspondence or any subsequent Employment Tribunal proceedings. When having these conversations, the employer may use the phrases “without prejudice discussion” and “protected conversation” interchangeably. However, employers need to be careful that they are using the correct phrase in the right situation, and that the correspondence will actually be protected in any future litigation. 

Without Prejudice Correspondence 

The purpose of without prejudice communication is to encourage parties to try and settle a dispute outside of the Tribunal by allowing them to speak freely, knowing that any admissions they might have made to try to settle the matter, cannot be used against them. An employer can therefore only refer to correspondence (whether made in writing or orally) as being without prejudice, and thus protected, if there is an ongoing dispute between the parties at the time of the correspondence and the parties are making a genuine attempt to settle the dispute. 

The dispute will most likely be in relation to the employee bringing, or contemplating bringing, a claim in respect of their employment or its termination. However, this is not a definite rule. So long as there is evidence that a dispute exists, this will be sufficient for the protection to apply. Additionally, the employee must have consented to having a without prejudice discussion, meaning they understand the consequences this has on any future claims they may bring. 

An exception to the without prejudice rule is if the employer has used the without prejudice correspondence as a cloak for “perjury, blackmail or other unambiguous impropriety”. If this is found to be the case, the correspondence will not be protected.   

Protected Conversations 

Protected conversations were introduced under S111A of the Employment Rights Act 1996 to enable employers to have ‘off the record’ conversations in situations where there is no formal dispute, and where the without prejudice protection could not apply. This was intended to make it easier for employers to initiate settlement conversations. Such conversations will most commonly be used where an employer wants to have certain conversations without following a formal process. Examples of this may include, to avoid a drawn-out process, such as redundancy, by offering employees an alternative package, or settlement offer, or if an employer wants to avoid going through a performance management process where an employee’s performance is not at the required level. 

However, this protection is limited to claims for unfair dismissal only. Therefore, if an employee brings any other claim in the Tribunal, these conversations will not be protected. Additionally, if the employer’s behaviour is found to be “improper”, this protection will not apply. 

Comment

Employers need to be cautious not to use the phrases “without prejudice” and “protected conversation” routinely without understanding what each phrase means. An employer cannot assume that they will be covered by the protection. These protections will only apply in the very limited situations we have discussed above.