Without Prejudice vs Protected Conversation: Key facts from top law firm

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Without prejudice and protected convesations

Employers tend to use the terms “without prejudice” and “protected conversation” interchangeably when making an offer to terminate an employee’s employment with a financial offer, but they are separate legal concepts.

Without prejudice privilege has existed for a long time in the common law whereas the concept of a protected conversation is barely a decade old. Protected conversations were created so that employers and employees could have a conversation about ending the employment relationship without the conversation itself breaching the term of trust in the contract. This was because prior to their creation, without a pre-existing dispute, an employer could not have such a conversation without acting unlawfully and enabling the employee to take legal action for constructive dismissal.

Without prejudice

The without prejudice principle is reserved for a genuine attempt by an employer or employee to settle an existing dispute.

Once made, the content of the offer cannot then be put before the employment tribunal as evidence. There are exceptions to this rule, but the key point is there must be a pre-existing dispute for privilege to apply. If there is no pre-existing dispute then no privilege exists and the conversation can be revealed to a judge (unless it is also a protected conversation).

Pre-existing dispute

A dispute can mean the commencement of ACAS Early Conciliation, an employee starting employment tribunal proceedings or an employee raising allegations in a grievance. It could also be the making of genuine disciplinary allegations against the employee.

Protected conversations

There is no need for there to be a pre-existing dispute for an employer to have a protected conversation with an employee. The employer does not need to give a reason to the employee, nor does the employer need to have a reason to make the offer. Usually an employer does not give advanced warning of a protected conversation meeting with meeting requests labelled “Catch Ups” or “one-to-one”. There is no requirement for an employer to notify an employee of the true purpose of the meeting in advance.

When faced with a protected conversation offer, an employee can refuse the offer, or negotiate it, however our advice is to say nothing during the meeting and to contact us as soon as possible so that we can set out your options.

The employer usually informs the employee that if they do not accept the offer then there will be some consequence such as disciplinary proceedings, performance reviews or redundancy.

The employee has certain protections should their employer have a protected conversation with them. These protections may be found in the ACAS Code of Practice. There must not be: discrimination; harassment; victimisation; assault, threats of assault or other criminal behaviour; threats of dismissal without due process; or improper pressure. Improper pressure includes:

  • Not giving the reasonable time for consideration set out in paragraph 12 of this code (10 days).
  • An employer saying before any form of disciplinary process has begun that if a settlement proposal is rejected then the employee will be dismissed.
  • An employee threatening to undermine an organisation’s public reputation if the organisation does not sign the agreement, unless the provisions of the Public Interest Disclosure Act 1998 apply.

An employer’s offer made in a protected conversation will not usually be allowed to be shown to an employment tribunal; if the employer breaches any of the ACAS protections, a judge may consider if the tribunal can hear details of the protected conversation. If an employer claims to make a without prejudice privilege offer to terminate an employee’s employment, but the offer is not covered by without prejudice principles, the employer can still rely on the offer being a protected conversation, but only if they adhere to the ACAS Code.

In our experience, employers often make without prejudice offers where there is no pre-existing dispute and then remove employees from work, terminate their systems access and inform their colleagues that they have left. The actions taken by the employer are not protected; for example, an employee’s removal from work and the termination of their systems access cannot be covered by without prejudice or a protected conversation. This means that an employee can raise these matters at an employment tribunal.

Our advice when faced with a protected conversation or without prejudice offer is to say nothing, take notes and then take legal advice as soon as possible.

This article is written by Will Burrows, Partner at Bloomsbury Square Employment Law. If you have any questions or issues relating to topics discussed in here, please get in touch and arrange a free consultation with us.

Further reading:

“Employment Law” by Stephen Taylor and Astra Emir

This textbook provides an overview of various employment law principles, including the “without prejudice” rule and its implications in employment disputes and negotiations.

“The Employment Rights Act 1996”

This legislation contains relevant provisions and case law references that discuss the “without prejudice” principle as it pertains to employment claims and settlements.

**Case Law: “Fletcher v. B&Q plc” [2005] IRLR 637

This case illustrates how the “without prejudice” principle is applied in employment tribunals, particularly regarding discussions aimed at settlement.