“Without Prejudice” and “Protected” Conversations Explained

When job losses are in the air, people sometimes use the terms “without prejudice” and “protected conversation”, perhaps without understanding precisely what they mean.  In fact both are technical legal terms that have very specific meanings and it is important, therefore that employers and employees don’t confuse them.

Let’s start with “protected conversation”.  This is an off the record discussion between you and you employer about your employment.  It may be about a number of different issues, such as your performance or other aspects of your work.  It is often a precursor to an offer of a Settlement Agreement, bringing your employment to an end. As long as the rules relating to protected conversations are kept to by your employer, you would not be able to refer to what was said in the conversation, if you were later to make a claim to an Employment Tribunal.  For there to be a protected conversation, there is no need for there to be any existing dispute between you and your employer.  It may be something that, from your point of view comes “out of the blue”.

It is not an opportunity for your employer to put pressure on you, for instance, to resign or to accept certain terms on pain of being dismissed.  If your employer tried to do this, the risk is that the conversation would no longer be “protected”.  Nor can an employer use a protected conversation as a cover to or discriminate against you or do anything else unlawful.  In these circumstances, you would be able to refer to the conversation at a Tribunal, if things were to go this far. It may even give rise to a claim in its own right.

A “without prejudice” discussion is another type of discussion which, if it is done properly, cannot be referred to, if you were later to bring a claim at the Employment Tribunal.  The key difference is that for there to be a without prejudice discussion, there must be an existing dispute between you and your employer.  You will therefore know about the problem that has arisen, before the discussion takes place.  Generally speaking without prejudice discussions are used to discuss exit packages. For a discussion or correspondence to be without prejudice, there must be some attempt to settle an existing dispute.  Essentially it is to do with negotiation – which Tribunals are always keen to encourage!

If you need advice on any of the subjects mentioned in this post, contact us and we will be happy to help you.  Remote appointments can easily be arranged