Introduction
When employment issues arise, employers may want to discuss a potential exit with an employee in a way that reduces legal risk. Two common approaches are a protected conversation and a without prejudice conversation. Although both provide a degree of confidentiality, they work in different ways under UK employment law.
What is a Protected Conversation?
A protected conversation is a statutory tool under Section 111A of the Employment Rights Act 1996. It allows an employer and employee to have an “off the record” discussion about ending employment, usually linked to a settlement agreement.
- No dispute needs to exist before the conversation takes place.
- The conversation cannot usually be referred to in ordinary unfair dismissal claims.
- However, it does not apply to claims involving discrimination, whistleblowing or automatic unfair dismissal.
What is a Without Prejudice Conversation?
A Without Prejudice conversation is based on common law. It protects genuine settlement discussions when a dispute is already underway between the employer and employee.
- There must be a genuine dispute for the protection to apply.
- Conversations are generally inadmissible in tribunal proceedings if they form part of settlement negotiations.
- Protection can extend to a wider range of claims, including discrimination, as long as settlement is being genuinely attempted.
Key Differences Between Protected and Without Prejudice Conversations
- Protected conversation – No existing dispute required, but protection is limited to ordinary unfair dismissal claims.
- Without prejudice conversation – Requires a dispute, but can cover a broader scope of claims.
Why Employers Need to Know the Difference
Misunderstanding the distinction between a protected conversation and a without prejudice conversation can expose employers to legal risk. If you rely on the wrong type, there is a chance the discussion could be used as evidence in tribunal proceedings. Employers should always seek professional advice before starting these conversations to ensure they are legally protected.
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