For many employers, the need will arise to have either a without prejudice or protected conversation with an employee. Are you clear on the difference between the two? Do you understand what you can and cannot do or say? Here is our two-minute guide …
- Section 111A of the Employment Rights Act 1996 enables confidential and Protected Conversations to take place between employers and employees, in specific circumstances.
- The law surrounding the term ‘Without Prejudice’ is part of common law. Therefore, it isn’t written down in any specific legislation.
What is the difference between the two?
Protected conversations allow for a discussion to be held between the two parties, which is aimed at mutually agreeing termination of employment, with a Settlement Agreement (a Settlement Agreement is a legally binding document which will detail the terms of the agreement made as well as prevent the individual from bringing an Employment Tribunal claim against the organisation). This can be easier than other routes to dismissal, because such discussions (if both parties agree) are not admissible within any subsequent legal proceedings, including an Employment Tribunal. They are useful to consider if performance or conduct issues have been identified and where both parties wish to avoid the awkwardness of a long-drawn-out process.
Without prejudice can only be held when their is a genuine dispute between the employee and employer already in place. There is no requirement for there to be a dispute in place prior to commencing a ‘Protected Conversation.’ For example, there does not need to be a formal performance, conduct process, or a grievance investigation in place/ongoing for an employer (or an employee for that matter) to request a ‘Protected Conversation’.
Do you need to give your employee advance notice of a meeting?
- As employers are able to initiate a ‘Protected Conversation’ without there being a pre-existing dispute, it also means that they do not have to provide any prior warning of the discussion.
- The same would apply for a ‘Without Prejudice’ conversation, however, to ensure any conversation of this nature can remain strictly off the record, the conversation needs to be a genuine attempt to settle an existing dispute.
How are we Protected?
‘Protected Conversations’ and/or any other documentation and/or correspondence related to the ‘Protected Conversation,’ only provides protection from an unfair dismissal claim at an Employment Tribunal. They do not provide protection from any other potential Employment Tribunal Claims. Claims for discrimination, automatic unfair dismissal or unlawful deduction of wages, for instance, are excluded.
In contrast, ‘Without Prejudice’ Conversations, providing there is already a dispute in place, can be held and do protect the employer from any potential claims for discrimination.
However, if a ‘Protected Conversation’ leads to an employee agreeing to signing a Settlement Agreement, protection from such claims can be included within the Settlement Agreement. Without prejudice discussions are also often followed up with a Settlement Agreement, again providing full protection (in so far as the law allows i.e. you cannot prevent them from raising claims such as relating to pensions or whistle-blowing).
Employers should be cautious when conducting Protected Conversations, as protection will not be in place if the behaviour of the employer during the ‘Protected Conversation’ or linked to matters surrounding the conversation is considered to be ‘improper.’ For example, conduct that is considered to be bullying and harassment would not make the conversation ‘Protected’. This could also include occasions when an employee has not been given reasonable time to consider a Settlement Proposal, and/or if a Settlement Offer is presented as a done deal from the beginning.
Planning your approach
Prior to commencing a ‘Protected Conversation’ an employer should also consider what steps they may need to take if they fail to reach an agreement with the employee, i.e. an ‘Open Process’. for example, they may have to consider commencing a formal performance management process and/or investigation into alleged misconduct.
The same applies when entering into ‘Without Prejudice’ discussions in that an employer needs to ensure they have a genuine ‘open’ process available to them if ‘Without Prejudice’ discussions are unsuccessful.
If you choose to pursue the Protected Conversation route:
- Meet with the employee to explain the concerns related to their employment. Explain that due to your concerns you are considering commencing a formal process such as performance management and/or misconduct procedure.
- Explain that in order to reduce the uncertainty that this may cause and/or to avoid an unpleasant process for all parties, ask if they are willing, in order to resolve this matter in a manner which is beneficial for all parties, to consider another route via a ‘Protected Conversation.’
- Explain that ‘Protected’ means that any matters discussed would be off the record and as such would not be admissible should there be any legal proceedings.
- Explain that it is entirely up to employee whether or not they wish to enter into such a discussion and if they ever wish to withdraw from such discussions they can.
- Have your Protected Conversation where you put to them the settlement offer and terms you are considering and the need for a Settlement Agreement should they agree to proceed. Be aware that employees are entitled to receive a contribution towards their legal fees in taking advice on the proposed agreement and legal advice has to be taken whether they would wish to do that or not.
- Give the employee at least a couple of days to consider your offer. Provide them with the key points of the settlement offer in writing.
- If appropriate, arrange a further meeting to discuss the offer. If they request such a meeting they should be provided with the right to be accompanied at any subsequent meetings by either a colleague or a Trade Union Representative.
- If the employee does not want to consider the offer formally, close the ‘Protected Conversation’ discussion and advise the employee you will now consider the best way forward – this is when you will want to have an ‘open process’ to fall back on.
- If the Protected Conversation process is continuing, provide the employee with a copy of a draft Settlement Agreement. Please note the employee is entitled to up to 10 days to consider it and to receive advice from a legal adviser of their choice (please note this can include a Union representative).
- The employee can withdraw from the discussions at any time in which case you revert to managing the situation in line with your policies and procedures.
If you choose to pursue the Without Prejudice route with the view of negotiating a Settlement Agreement then the same route as described above would apply, although any letters and correspondence would be headed up as ‘Without Prejudice’.
If you have a challenging employee then please do get in touch with us for support. No contract required as we have a pay as you go option which can be very quickly set up so there is no delay in us giving you the support you need. If you wish to keep your distance from an employee for any reason, let us know and we can arrange and chair meetings on your behalf.
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The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.