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  • Overview

    The concept of protected and without prejudice conversations is essentially the same, it allows communications between an employer/employee in certain circumstances to be protected by confidentiality and to not be admissible in any future dispute before a court or employment tribunal should this occur.

    There are however subtle differences between the two concepts and they should be used only in certain prescribed circumstances.

    Protected conversations

    In July 2013 the Government introduced new statutory rules to facilitate pre-termination settlement discussions referred to as “protected conversations”. A protected conversation entitles an employer or employee to initiate a settlement discussion to bring the employment relationship to an end without there actually being a dispute already in existence between the parties.

    It is important to note that an employer can only facilitate a protected conversation in circumstances were there is a claim or potential claim for unfair dismissal. It cannot be used in cases which may also involve discrimination, whistleblowing or breach of contract.

    If either party engages in “improper behaviour” during the protected conversation then the negotiations will loose their confidential status and may be considered as evidence by a court or tribunal. Improper behaviour is likely to arise where an individual is not given a reasonable time to consider the settlement offer (ACAS guidelines recommend 10 days) or the employer states to the individual before or during a protected conversation, that if the offer is rejected he/she will be dismissed.

    Without prejudice conversations and communications

    By contrast 'without prejudice' communications can only be used when there is a genuine dispute in existence between an employer and employee.

    It is not appropriate therefore for an employer to start a without prejudice discussion/communication with an employee simply because he/she has raised a grievance. Raising a grievance does not mean that there is a dispute between the parties. Not being permitted to do this can have limitations because it prevents employees and employers from having confidential exploratory discussions about options, including potential exits before a matter escalates into a full blown dispute.

    However, if is important to be aware that if an employer initiates without prejudice discussions and there is no dispute between the parties, there is a very real risk that by doing so, it may breach the implied term of trust and confidence that should exist in every employer/employee relationship which may give rise to the individual in question having a claim against the employer for constructive dismissal and or at the very minimum raising a grievance.

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