Protected Conversations – what are they?

“without prejudice”, “off the record”, “pre-termination negotiations” are labels attached to “protected conversations” in the workplace between you and your employer. The protection available is that the content of these conversations cannot be relied on in any subsequent court or tribunal proceedings by you or your employer however, the protection is only available in certain circumstances.

The protection therefore gives you and your employer the ability to discuss the settlement of actual and (due to a recent change in the law) potential disputes without the fear of prejudicing your respective positions. It is therefore likely that your employer will attempt to engage in such a conversation with you prior to or as part of negotiations over the settlement agreement.

Actual disputes


Where there is an existing dispute between the parties conversations had in a ‘genuine attempt’ to resolve that dispute then the conversations would be deemed to be ‘without prejudice’.

The effect of the without prejudice rule means that the conversation cannot be divulged in future tribunal or court proceedings as evidence against either party. This is a convenient way to try to resolve a difficult problem in an informal manner.

However, the without prejudice protection cannot be used as a ‘cloak’ to conceal unlawful behaviour such as blatant discrimination on part of the employer or misrepresentation, fraud or duress by either party.

Potential disputes


A large amount of litigation arose due to employers initiating without prejudice conversations when there was no existing dispute. Supposed without prejudice conversations were therefore held incorrectly and both parties could rely on what was discussed in these conversations. This brought about a change in the law in July 2013.

Your employer will therefore now be able to engage in "pre-termination negotiations" with you even where no formal dispute has yet arisen.

The content of these negotiations can be protected in certain circumstances so therefore are commonly encountered with a view to entering into a Settlement Agreement.

The new rules make it far easier for an employer to initiate and engage in termination discussions without needing to position the talk as being on Without Prejudice basis. Such negotiations and offers will now be inadmissible in ordinary unfair dismissal proceedings, provided that the employer has complied with the provisions set out in the new statutory ACAS Settlement Agreements Code. It will encourage open dialogue at an earlier stage without fear of recrimination.

However, if there has been ‘improper behaviour’ by either party then these conversations can be relied upon. Improper behaviour could relate to anything said or done which, in the Tribunal’s view, was improper. An example could be an employer applying undue pressure on the employee to sign the agreement. The Tribunal will only admit these conversations as evidence if it ‘just’ to do so.

A word of caution in that the new rules only apply to cases that would otherwise give rise to a claim for ordinary unfair dismissal. They do not apply to claims for discrimination.

Practical considerations


You must ensure that your employer makes clear whether the conversation is ‘without prejudice’. This is usually made clear in writing by the employer stating clearly on the face of the letter ‘without prejudice.’

In conversations your employer should make unequivocally clear that it is being conducted ‘without prejudice’, ‘off the record’ or words to that effect.

A story from earlier this year.

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