Discussions about ending employment are never simple. Employers want to manage risks while employees want to protect their rights and reputations. UK law has created two important frameworks to make these conversations possible without fear that every word will later be used in tribunal. These are the protected conversation and the without prejudice conversation.
A protected conversation is set out in section 111A of the Employment Rights Act 1996. It allows employer and employee to talk openly about whether employment should end on agreed terms without those discussions being used later in an unfair dismissal claim. No existing dispute is needed. An employer may simply feel that the working relationship is not sustainable and can raise this directly in a protected conversation.
A without prejudice conversation is different. This applies only when there is already a dispute.
The rule allows both sides to negotiate a settlement in confidence without their words being used against them later.
A classic example would be an employee who has lodged a grievance claiming bullying by a manager. The employer may believe the grievance has no foundation but wishes to avoid drawn out procedures. Essentially both sides can then meet for a without prejudice conversation to see if a settlement can be reached because a formal dispute already exists therefore,the without prejudice rule shields the conversation.
The key distinction is that a protected conversation can take place before conflict arises while a without prejudice conversation only applies once the relationship has already broken down and claims are being considered.
Protected conversations are also more limited in scope because they only apply to unfair dismissal claims.
A without prejudice conversation on the other hand can cover a wider range of disputes including discrimination and whistleblowing provided the discussion is genuinely aimed at settlement.
The protection offered by a protected conversation can be lost if one side engages in improper conduct. This includes giving an employee an ultimatum to accept an offer on the spot threatening dismissal for refusal using aggressive or discriminatory remarks or otherwise putting unreasonable pressure on the decision.
In such cases a tribunal may decide the content of the conversation can be admitted as evidence. Employers are strongly advised to give at least ten days for consideration and to encourage independent legal advice. Employees should remember that they are under no obligation to accept what is offered.
An employer might invite an employee whose role has changed significantly after restructuring to a protected conversation. The discussion would explore whether a settlement and positive reference could provide a dignified exit. No dispute exists yet but the employer wants an open dialogue.
In contrast a without prejudice discussion could take place where an employee has already brought a grievance alleging racial discrimination. The parties may agree to hold a meeting labelled without prejudice to explore settlement. If the conversation is genuinely aimed at resolving the dispute the law prevents either party from later relying on those discussions in tribunal.
Employers often lead the process but employees are equally entitled to request either type of conversation. An unhappy employee may ask for a protected conversation to see if an amicable exit can be reached. An employee who has already raised a grievance might agree to a without prejudice meeting to see if settlement is possible. The law is neutral on who starts the process as long as it is handled fairly and respectfully.
Protected and without prejudice conversations allow space for frank and practical dialogue that can prevent costly and stressful disputes. They are not loopholes for unfair treatment. When used correctly they help both sides find solutions with dignity and discretion.
If you would like any help and support in regard to protected conversations, please do not hesitate to contact the RELA team.
Appointments are available by telephone or via video call, so no matter where you are in England or Wales we can assist you.
The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.
The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.
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