The notion of “protected conversations” and “without prejudice conversations” share the same purpose of fostering open communication between employers and employees in specific scenarios, without the risk of legal repercussions. However, there are subtle differences between the two, with a protected conversation being held prior to any disputes and a without prejudice conversation employed when an existing dispute is present. These terms are often confused, even amongst professionals in the field.

Protected conversations are legally defined as “off the record” exchanges between employer and employee, wherein issues such as performance can be discussed transparently without the fear of leading to a tribunal. These conversations are facilitated under Section 111A of the Employment Rights Act 1996 and necessitate the employee’s agreement for the protection to apply. While no specific meeting arrangements are required, a factual script outlining the issue and potential offer is recommended to prevent improper conduct or discrimination, which would render the conversation unprotected.

Section 111A Employment Rights Act 1996: What does it say and what does it mean?

Section 111A Employment Rights Act 1996 came into law in 2013. It introduced the pre-termination negotiation, commonly called a protected conversation.

A pre-termination negotiation is a discussion or written communication made (before termination) with a view to an employee’s employment ending on terms to be agreed under a settlement agreement. A pre-termination negotiation is inadmissible in relation to a general unfair dismissal claim but not other claims, such as automatic unfair dismissal or discrimination or breach of contract. A communication is not protected if in the employment tribunal’s opinion, something said or done was improper.

The full wording of section 111A Employment Rights Act:

“111A Confidentiality of negotiations before termination of employment

(1)Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111.

This is subject to subsections (3) to (5).

(2)In subsection (1) “ pre-termination negotiations ” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.

(3)Subsection (1) does not apply where, according to the complainant’s case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.

(4)In relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.

(5)Subsection (1) does not affect the admissibility, on any question as to costs or expenses, of evidence relating to an offer made on the basis that the right to refer to it on any such question is reserved.”

On the other hand, without prejudice conversations occur when a dispute exists and both parties are attempting to reach a resolution. Any written or oral communication during these negotiations cannot be presented as evidence in any legal proceedings. Such conversations typically involve settling agreements prior to termination and offer both parties an opportunity to discuss the potential settlement without the risk of later court or employment tribunal proceedings.

In their essence, both protection conversations and without prejudice conversations foster free and transparent dialogue between employers and employees without the fear of legal repercussions. However, it is critical to understand the subtle differences between the two concepts to apply them correctly in practice.