A ‘protected conversation’ is not the same as a ‘without prejudice’ conversation.
However, both of these types of conversations allow employers to enter into off-the record conversations with a view to agreeing an exit with the employee.
So, what is the difference between a protected conversation and a ‘without prejudice’ conversation?
- A protected conversation is held when there is no existing dispute.
- If there is an existing dispute then you hold a ‘without prejudice’ discussion.
The issues discussed in a protected conversation are meant to enable both parties to have ‘off the record’ discussions and their very existence cannot be disclosed and cannot be waived. Most of the time they are held as a quicker alternative to going through a formal process of dismissal. However, they do have their limitations and do not cover claims of discrimination, automatic unfair dismissal, unlawful detriment, breach of contract or health and safety matters therefore the conversation is not protected.
Therefore, the use of protected conversations is limited to straightforward dismissal and/or unfair dismissal cases.
If a discussion needs to take place in relation to exiting an employee on long-term sickness absence, given the possibility of a subsequent disability discrimination claim, then this is an example where the without prejudice rule has an advantage over protected conversations.
However, if there is improper behaviour during a protected conversation then the protection is lost. Examples of this are where the employer puts undue pressure on the employee to consider any settlement and Acas recommends you allow 10 days for this. Or it could be where the employee is told to enter into a settlement agreement or be dismissed. The employee could class this as coercion entitling them to claim constructive unfair dismissal. Also, if the employee feels they are being subjected to unwarranted criticism they can still bring a grievance and if the outcome is that the grievance is not upheld then it is likely that the details of the protected conversation will be disclosed.
Employment Rights Act
Having a protected conversation is covered under s.111a of the Employment Rights Act and allows you to have the opportunity to discuss exit packages in a full and frank conversation without fear (providing the conversation is not improper) of comments being reported to a tribunal. Agreement from the employee to enter into the protected conversation is still required. However, as above, if the conversation does not fall within the quite narrow definitions of where to use this it could be admitted as evidence in an employment tribunal claim.
Therefore, employers should not be under the impression that they are covered when entering into a protected conversation and they should be held with extreme caution.
It’s always best to follow a script and we can provide support and guidance during either protected or without prejudice discussions. If you require HR assistance, we can help review your circumstances and provide you with practical support and advice. Call 0844 324 5840 or contact us online to find out how we can help your business.