“This conversation is off the record” is something which is said more often than it should…and rarely results in what is said being kept off the record.

There are ways to ways to have discussions free from the risk of what is said being used as evidence in a Tribunal if there remains a dispute. Saying “this is off the record” isn’t one of them.

You would need to have a ‘protected conversation’ or one that is  ‘without prejudice’. The two are not the same but both allow employers to enter into discussions with a view to agreeing an exit with the employee.

So, what is the difference between a protected conversation and a ‘without prejudice’ conversation?

A ‘protected’ conversation is held when there is no existing dispute.

If there is an existing dispute then you hold a ‘without prejudice’ discussion.

The issues discussed in a protected conversation are meant to enable both parties to have  discussions. The very existence of the discussion cannot be disclosed and cannot be waived.  Most of the time they are held as a quicker alternative to going through a formal process of dismissal.  However, they do have their limitations and do not cover claims of discrimination, automatic unfair dismissal, unlawful detriment, breach of contract or health and safety matters therefore the conversation is not protected. If an employer tries to talk about these issues in a ‘protected conversation’, the protection is non-existent.

Therefore, the use of protected conversations is limited to straightforward dismissal and/or unfair dismissal cases.

If a discussion needs to take place in relation to exiting an employee on long-term sickness absence, given the possibility of a subsequent disability discrimination claim, then this is an example where the without prejudice rule has an advantage over protected conversations.

Improper behaviour

If there is improper behaviour during a protected conversation then the protection is lost.  This includes an  employer putting undue pressure on the employee to consider a settlement such as being told to accept a settlement agreement or be dismissed.

Employment Rights Act

Having a protected conversation is covered under s.111a of the Employment Rights Act and allows you to have the opportunity to discuss exit packages in a full and frank conversation without fear (providing the conversation is not improper) of comments being reported to a tribunal.    Importantly, the employee must agree to enter into the protected conversation for the protection to actually exist

Employers should not be deceived that they are covered when entering into a protected conversation and they should be held with caution.