Understanding Without Prejudice & Protected Conversations with your employer

Protected conversations are a legal construct that enables your employer to have an ‘off the record’ chat with you, and make you an offer to leave the business, without you being able to refer to that conversation in a tribunal claim later.

Employees can use protected conversations too but you’re better off making sure your employer knows you have an issue first, otherwise there is no reason for them to agree to pay you an ex gratia settlement amount. As such, it would be best for you to have a ‘without prejudice’ conversation at the appropriate time, rather than seeking to have a protected conversation before you’ve raised a dispute.

Full transcript:

This is the latest video in our series
dealing with tactics to assist you and
leaving your job the settlement
agreement that puts you in a good
financial position so today we're going
to look at two different concepts
without prejudice and protector
conversations maybe you've heard to tell
us before maybe not maybe you think you
know what they are we're not quite sure
but I can tell you from my experience
the majority of HR professionals out
there using these terms don't understand
what they really mean what that means is
that if you do understand them it will
put you in a fantastic position as
knowledge is power now the context in
which you will hear both these terms
without prejudice and protected
conversation is when your employer is
making you an offer to settle any claims
that you may have against it usually
involving the termination of your
employment it might come in the form of
a request without prejudice meeting or a
protected conversation in the form of a
letter making and without prejudice
offer so if you get a meeting request
headed without prejudice or protect the
conversation you know you're about to
made an offer to leave your job so what
does that without prejudice mean well it
is a legal term which means without
detriment to any right or kind in plain
English this means that whatever is said
or done on without prejudice bases
cannot later be used to your
disadvantage should you decide to make a
claim in an employment tribunal against
your employer so generally speaking if
without prejudice protection applies to
a situation whatever is said and done in
that situation whether it's a meeting
your letter in an email etc cannot later
be used in evidence or relied on by any
party this means there is an element of
protection for the parties in a dispute
if they open discussions on without
prejudice basis and any discussions
undertaken under the cloak this
privilege or protection are confidential
between the parties the most important
factor that must be present for this
protection to apply is that the
to be a genuine dispute between the
parties and also the correspondence or
conversations must be declared to be
will with honor without prejudice basis
and the discussions or correspondence
that take place under that without
prejudice protection must be a genuine
attempt to resolve this dispute when
without prejudice rule applies that
particular email settlement agreements
or conversation is something which the
two parties in the employment dispute
usually you and your employer have to
keep off the record so if the case goes
to an employment tribunal for example
that without prejudice item cannot be
brought to the attention of or way to
mention to the judge unless at the end
of the case when things like costs are
being discussed so let's break this down
firstly there has to be a dispute
between the parties in order to qualify
for without prejudice protection so if
you have a grievance against your
employer no matter what it may be about
or your employer has what it thinks a
genuine issue with you say your
performance then you can usually assume
that if one of the parties wants to
start negotiations on or without
prejudice basis then it will qualify as
being a dispute between the parties if
however there is no pre-existing dispute
and your employer
ambushes you with or without prejudice
meeting and offers termination of your
employment then there's a definite
question as to whether they are without
prejudice rule applies what does this
mean well technically it means the
conversation isn't privileged and can be
revealed to a judge but actually as long
as the conversation takes place in the
form of a protected conversation which
we will come to later then it probably
will be a protected conversation instead
of without prejudice conversation
however HR may not know this so if there
is no pre-existing dispute then you
should use it as a negotiation tactic so
what happens when without prejudice
discussions are opened by the employer
well generally if your employer wishes
to open negotiations about the
termination of your contract without
prejudice basis it will either call you
to without prejudice of meeting or ask
in a meeting if you can't speak on it
without prejudice pay
your employer will then usually set
reasons out for the discussion and their
proposal for a financial settlement in
return for the termination of your
employment they will often then hand you
a letter marked without prejudice which
will set out the details of that offer
and sometimes the reason for the offer
and the consequences of not accepting
for example you will commence a
performance procedure or there'll be a
redundancy exercise or something of that
nature it is less common for an employee
to ask for that produce meeting or phone
call because for an employee to open
negotiations is a very big step is
therefore usually better for you to set
out the issues on paper and without
prejudice letter rather than verbally so
if you wish to initiate negotiations
with your employer a sound approach
would be for you to send them or without
prejudice letter setting out the reasons
for wishing to negotiate and the terms
on which you are willing to settle in
exceptional circumstances without
prejudice exchanges can be used in legal
proceedings these circumstances are if
without prejudice exchanges uncover any
evidence that may allow a settlement
agreement to be rejected on the grounds
that it's based on misrepresentation
fraud or undue influence if without
prejudice exchanges on earth clear
evidence perjury blackmail or other
unambiguous wrongdoing or criminal
behavior all as evidence that a claimant
has acted reasonably in mitigating their
losses by settlement or in fact I am
evidence where both parties to they
without prejudice material agree for
example these should be admitted in
court and also a letter Mart without
prejudice a vaster costs for example
could be shown to a judge after the
conclusion of a case to make a ruling on
any outstanding cost issues generally in
employment proceedings it's very rare
for without prejudice conversations or
correspondence to be shown to a judge
usually it's only in cases of
discrimination or whistleblowing where
evidence of wrongdoing has written in
without prejudice
constant so protector conversations what
our protector conversations well they
are a legal construct that enables your
employer to have an off-the-record chat
with you and make you an offer to leave
the business without you being able to
refer to that conversation in a tribunal
claim at a later date they are different
- without prejudice discussions but
based on the same principle now there
are rules about having a protected
conversation but your employer can just
take you aside say that this is a
protected conversation and tell you for
example that your work is substandard
and they want you to leave and in the
return they'll offer you a payment they
can even not give a reason they can just
make you an offer to leave and as long
as there are no allegations of
whistleblowing breach of contract or
discrimination then a protected
conversation is off the record now if
your employer to use a protected
conversation with the other post without
prejudice conversation that does not
need to be an existing dispute between
you your employer must however act
properly when conducting a protected
conversation and if they act improperly
and for example by threatening you that
unless you take what's being offered
then you will be dismissed or by
applying excessive pressure to ensure
that you accept their terms then the
conversation is no longer protected it's
no longer protected then it can be
referred to by a judge and you can use
it as a reason to sue your employer
either for constructive dismissal or
unfair dismissal there are a couple of
important limitations to the scope of
protected conversations which you can
use your advantage
namely that your employer cannot dismiss
you or tell you that you will be
dismissed under the guise of a protected
conversation they can say however that
you do not accept the offer then they
will start the Disciplinary procedure
against your performance management
process but they cannot tell you that
that process will lead to you being
dismissed your employer can't
discriminate against unit protected
conversation if you think you have been
selected for the protected conversation
due to your gender your race
or Maternity for example all because
you've raised concerns about
discrimination then the conversation
will not be protected it is not uncommon
for employers to attempt to have
protected conversations with women
returning from maternity leave but this
will almost always give rise to a claim
of maternity discrimination now
employees can use protected
conversations - but you're better off
making sure your employer knows you have
an issue first otherwise there is no
reason for them to agree to pay you an X
greater settlement amount as such it
would be best for you to have a without
prejudice conversation at the
appropriate time rather than asking to
have a protected conversation before
you've raised a dispute now we're going
to do some more videos on how to
negotiate in without prejudice meetings
and protected conversations over the
next few weeks so look for those on our
youtube account or our website monaco
solicitors.co.uk