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Getting those “off the record” conversations right

February 22, 2017 at 9:00 AM

It is all too common for managers to confuse 'without prejudice' and 'protected conversations'. Here's how employers can get the distinction right.

Many employers are familiar with the concepts of 'without prejudice' and 'protected conversations' as a method of starting exit negotiations with an employee. However, both terms are frequently used incorrectly. Without a full appreciation of their advantages and their limitations, employers can use the wrong terms and leave themselves exposed.

Getting those 'off the record' conversations right

Without prejudice

Put simply, anything written or said ‘without prejudice’ in a genuine attempt to settle an existing dispute cannot being used as evidence in subsequent litigation.

The main limitation is that there needs to be an existing dispute - so a manager having an ‘off the record’ conversation with an underperforming employee would not be covered. The employer could face a resignation and claim of constructive unfair dismissal or an argument that any subsequent dismissal was pre-determined and therefore unfair.

The dispute doesn’t have to constitute a formal claim, but the parties do need to have at least thought of litigation if they cannot reach an agreement.

Some employers assume that a grievance amounts to a dispute. It doesn’t. The employer could uphold the grievance. The individual circumstances are very relevant, and therefore it can sometimes be difficult to say with certainty whether the without prejudice rule applies.

Protected conversations

Protected conversations were introduced to enable parties to have ‘off the record’ discussions even where there is no dispute. In addition to the content, even their existence cannot be disclosed in litigation. What’s more, the protected nature of such conversations cannot be waived, even if both parties agree.

There are limitations too. They are only inadmissible in ordinary unfair dismissal proceedings. Claims of discrimination, automatic unfair dismissal, detriment, or breach of contract are not protected. Employers will not always know what claims an employee might later present. “Off the record” protected conversations are usually unwise when discussing a potential exit with an employee on long-term sickness absence, in light of the possibility of a disability discrimination claim. This is where the without prejudice rule has an advantage over protected conversations: if something is ‘without prejudice’ it is inadmissible in all legal claims, not just unfair dismissal.

Any 'improper behaviour' from the employer will lead to the protection being lost. Improper behaviour is not defined, but ACAS suggests that putting undue pressure on the employee would be an example. It goes so far as to recommend employers allow employees 10 days to consider any proposal.

Labels

A common misconception is that labelling a document 'without prejudice' will prevent it from being revealed in litigation. But it is the substance of the document, not its label, that is important. If the document doesn’t fit within the rules it will not be protected – whatever its label.

How we can help

We can explain your options and the best way for you to approach those ‘difficult conversations’ to put you in the best position possible to achieve your objective with the minimum of fuss, inconvenience and expense.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

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