Without Prejudice and Protected Conversations: What’s the difference?

What are Without Prejudice Conversations?

In the world of employment relations, “without prejudice” conversations refer to discussions between employers and employees aimed at resolving a dispute. These conversations hold a special privilege: statements made during a “without prejudice” conversation cannot ordinarily be used as evidence in court or tribunal proceedings.

This allows for open and frank communication, fostering a more productive environment for reaching a settlement.

Reasons for a Without Prejudice Conversation

There are several scenarios where a without prejudice conversation might be beneficial:

• Grievance Procedure: An employee may have raised a grievance, and the employer seeks to address it through an open discussion.
• Ongoing or Potential Litigation: If legal action is being considered by either party, a “without prejudice” conversation can be used to explore a possible out-of-court settlement.

Important Considerations:

• Dispute is Essential: For a conversation to be considered “without prejudice,” there must be a genuine dispute between the employer and employee. Initiating such a conversation where no dispute exists can be seen as a breach of trust.

What Can Be Discussed?

The beauty of “without prejudice” conversations lies in their flexibility. Both parties can discuss a wide range of topics freely, including:

• Settlement offers
• Reasons for the dispute
• Possible solutions
• Future working arrangements (if applicable)

The Conversation Can Be:

• Written or Verbal: Emails, letters, or face-to-face meetings can all be used for “without prejudice” communication.
• Extended: These conversations can take place over days, weeks, or even months, allowing for a comprehensive exploration of the issues.

 Protected Conversations

Protected conversations, introduced by Section 111A of the Employment Rights Act 1996, offer a way for employers to discuss an employee’s potential exit from the company on mutually agreeable terms. Similar to “without prejudice” conversations, these discussions are confidential, and statements made during them cannot be used as evidence in ordinary unfair dismissal proceedings.

This provides a safe space for both employers and employees to explore options for a mutually agreed exit from the business.

Key Difference from Without Prejudice Conversations

The key distinction between “without prejudice” and “protected conversations” lies in the presence of a dispute. “Without prejudice” conversations require a pre-existing issue, while protected conversations can occur even in the absence of a formal dispute.

Examples of Protected Conversations:

• Performance Issues: If an employee’s performance is consistently poor, a protected conversation can be used to explore improvement options or a possible exit strategy with a severance package.
• Redundancy: Discussing potential redundancies or restructuring with employees can benefit from the protection offered by a protected conversation.

When Conversations are Not Protected:

The “protected conversation” shield only applies to specific situations, such as ordinary unfair dismissal cases. It does not extend to:

• Discrimination Claims: If discrimination is alleged, the conversation’s content can be used as evidence.
• Automatic Unfair Dismissals: Conversations related to whistle-blowing or other protected disclosures are not protected.

Maintaining Proper Conduct:

The protections offered by both “without prejudice” and “protected conversations” hinge on all parties behaving appropriately. Improper behaviour like:

• Threats or violence
• Bullying or intimidation
• Harassment or offensive language
• Undue pressure
• Discrimination

can negate the protected status of the conversation.

Conclusion:

Understanding “without prejudice” and “protected conversations” empowers employers to facilitate constructive dialogue with employees while minimising legal risks.

This blog post is for informational purposes only and should not be relied upon as a professional opinion. If you are considering having a protected or without prejudice conversation, contact a Sapphire HR Consultant to discuss this further and take professional advice.