The concept of ‘protected conversations’ was introduced back in July 2013 when the switch was made from compromise agreements to settlement agreements. A protected conversatiuon is a ‘pre-termination’ discussion and, when initiated and conducted in the right way, can make negotiations much easier.

How to distinguish ‘without prejudice’ from a ‘protected conversation’

Both ‘without prejudice’ and ‘protected conversation’ are legal terms. Employers and employees alike often get these terms mixed up.

For ‘without prejudice’ to be a viable tool there has to be an existing dispute. If the circumstances are correct, ‘without prejudice’ can then be used to prevent anything written or discussed being used as evidence in subsequent litigation of any type of legal claim (except perjury, or blackmail etc.). What’s significant is that ‘without prejudice’ is not limited to just unfair dismissal claims. However, deciding what constitutes a dispute is not necessarily straightforward and employers may not be able to rely on ‘without prejudice’ in all instances.

‘Protected conversations’ were introduced to help facilitate discussions taking place between employers and employees even if there isn’t a dispute. Interestingly, not just their content is protected but the very fact they’ve taken place is protected from being disclosed in litigation too. And their protected nature cannot be waived even if both parties agree! However, a ‘protected conversation’ does have limitations. They only apply to ordinary unfair dismissal proceedings. Discussions cannot be protected if, for example, an employee makes a claim of discrimination or breach of contract.

So in certain circumstances, a ‘without prejudice’ discussion would be more appropriate.

So how do you ensure a protected conversation stays true to its name during talks?

Raising the subject of termination of employment with an employee is never an easy discussion to have. A protected conversation is a useful method of conducting discussions when ‘without prejudice’ isn’t appropriate. For example, if there is no dispute between an employee and their employer, a protected conversation can still take place.

However, an employer cannot rely on a conversation being protected if they have not followed protocol correctly in the first place. For example, a tribunal may deem a protected conversation to be admissible if an employee has not been given the right amount of time to consider a proposal, or was not told to obtain independent advice…

Protected conversations will also not remain protected, for example, if:

• An offer is presented as a ‘done deal’ too early on in the discussions
• Other options available are not explained to the employee
• HR staff weren’t prepared to answer questions, or removed the ability to ask questions eg. removed access to company email

A final word…

As you can see, what appears to be straightforward actually isn’t. So if you’ve been invited to have, or have been involved in, either a ‘protected conversation’ or a ‘without prejudice’ discussion, it’s worth obtaining legal advice to check where you stand.