What Is A Protected Conversation And How Does This Relate To Without Prejudice?
By Geoffrey Caesar, specialist settlement agreement solicitor.
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A protected conversation is a legally confidential discussion between an employer and an employee, often used in situations where the employer wants to discuss the possibility of ending the employment relationship. Like ‘without prejudice’ discussions, protected conversations are designed to promote honest communication without fear that the conversation will later be used against either party in tribunal or court proceedings. However, there are some important distinctions between a protected conversation and a ‘without prejudice’ discussion. Understanding how these terms work, when they apply, and how they differ can be vital for both employers and employees involved in settlement discussions.
Here’s a closer look at what protected conversations entail, how they relate to ‘without prejudice’ communications, and what you should keep in mind if you’re involved in either type of discussion.
1. What Is a Protected Conversation?
A protected conversation is a legally defined, confidential discussion introduced under Section 111A of the Employment Rights Act 1996. Protected conversations allow employers and employees to discuss the possibility of ending the employment relationship on agreed terms—such as through a settlement agreement—without fear that the conversation will later be cited as evidence in an unfair dismissal claim. This protection means that anything discussed in a protected conversation cannot generally be used against either party in an unfair dismissal case, even if no settlement is reached.
Employers often use protected conversations to raise the idea of a mutual separation, especially in cases where performance, conduct, or business restructuring is leading to consideration of ending an employee’s role.
2. How Does a Protected Conversation Work?
Protected conversations can be initiated by either the employer or the employee and are usually held to discuss settlement terms. During a protected conversation:
- Confidentiality Is Assured: The discussion is protected from being disclosed in any future unfair dismissal claims if it’s genuinely about the end of employment.
- No Requirement for an Existing Dispute: Unlike ‘without prejudice’ discussions, a protected conversation does not require an existing dispute between the employer and employee. Employers can initiate a protected conversation proactively to explore an agreed exit.
- Focus on Unfair Dismissal Claims: It’s important to note that protected conversations only apply to unfair dismissal claims. If the employee later raises claims of discrimination, harassment, or whistleblowing, the content of a protected conversation may not be protected from disclosure in those cases.
3. What Is the Difference Between Protected Conversations and ‘Without Prejudice’?
Though similar in some ways, protected conversations and ‘without prejudice’ discussions serve slightly different purposes:
- Without Prejudice Requires a Dispute: For a conversation to be covered by ‘without prejudice’ privilege, there must be an existing dispute between the parties. ‘Without prejudice’ discussions are generally used when there is an active legal dispute, or a potential one, that both parties are attempting to resolve.
- Protected Conversations Do Not Require a Dispute: Protected conversations, however, can occur at any time, even if no dispute exists. This means employers can initiate a protected conversation without having to justify the existence of a conflict.
- Type of Claims Covered: Protected conversations only cover unfair dismissal claims, so if the employee later raises claims related to discrimination, harassment, or whistleblowing, the content of the protected conversation may not remain confidential. In contrast, ‘without prejudice’ discussions can apply to a broader range of claims, provided they relate to resolving an existing dispute.
4. When Might an Employer Use a Protected Conversation?
Employers may initiate a protected conversation in various situations, including:
- Poor Performance or Conduct Concerns: If an employer feels that an employee’s performance or conduct is not meeting expectations, they might want to discuss an exit arrangement without initiating formal disciplinary proceedings.
- Redundancy or Restructuring: Employers sometimes use protected conversations to offer settlement agreements in cases of redundancy, particularly when they want to avoid lengthy consultation processes.
- Health or Absenteeism Issues: Employers may also propose a settlement if ongoing health issues or frequent absences are affecting the business.
Protected conversations are meant to be a voluntary, constructive way to explore mutual separation when the employment relationship is no longer working as expected.
5. How Do ‘Without Prejudice’ and Protected Conversations Work Together?
In practice, protected conversations and ‘without prejudice’ discussions often work together to protect the confidentiality of settlement discussions:
- Starting as a Protected Conversation: An employer might initially begin the discussion as a protected conversation if there’s no formal dispute yet. If the employee raises issues or disputes related to their treatment, the conversation may shift to a ‘without prejudice’ discussion.
- Using Both for Broader Protection: In some cases, employers label discussions as both ‘protected’ and ‘without prejudice’ to ensure that the conversation is confidential under either rule. This can be particularly useful if there’s a risk that an employee might later raise a formal dispute or if the conversation covers a range of potential issues.
6. Limits and Risks of Protected Conversations
While protected conversations provide a valuable tool for open dialogue, there are limits to the protection they offer:
- Improper Behavior or Coercion: If an employer uses the protected conversation to apply undue pressure, bully, or coerce the employee into agreeing to a settlement, the conversation may lose its protected status. Employees have the right to a fair and respectful discussion, and any misconduct during the conversation could lead to disclosure of the discussion in future proceedings.
- Exclusion in Discrimination and Whistleblowing Claims: If an employee later pursues a claim for discrimination, harassment, or whistleblowing, the content of a protected conversation may be admissible as evidence. This means that employers must be cautious when discussing potentially sensitive matters and should avoid discussing anything that might be perceived as discriminatory or retaliatory.
- Employee Awareness and Legal Advice: Employees are not required to accept an offer made during a protected conversation. They have the right to take time to consider the offer and seek independent legal advice before making any decisions. Employers are encouraged to remind employees of their right to legal advice to ensure the discussion is viewed as fair and reasonable.
7. Seeking Legal Advice for Protected and ‘Without Prejudice’ Conversations
Protected conversations and ‘without prejudice’ discussions are complex areas of employment law, and legal advice can be highly beneficial if you’re involved in either:
- Employees: If you’re an employee, a solicitor can help you understand your rights during a protected conversation, ensure that any offers are fair, and evaluate whether the discussion was conducted properly.
- Employers: If you’re an employer, consulting with a solicitor can help you structure protected conversations appropriately, avoiding any missteps that might lead to future claims. Legal advice can also help you understand the best way to frame settlement offers to ensure they are fair and legally sound.
Final Thoughts
Protected conversations and ‘without prejudice’ discussions both provide a way to have confidential settlement talks, but they work differently. Protected conversations allow for discussions without the need for an existing dispute and apply specifically to unfair dismissal claims, while ‘without prejudice’ requires a dispute and can apply more broadly.
Understanding how these terms work can be critical in ensuring that settlement discussions are handled properly, confidentially, and respectfully. If you’re entering into either type of conversation, consider consulting a solicitor to ensure you fully understand your rights and obligations.
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