Protected and without prejudice conversations

During the conversation, anything said cannot be utilised in any unfair dismissal procedures. A protected conversation can be entered into at any time in the employee life cycle, however if the employee has not completed two years’ service, there are alternative termination options available, as they will usually not enjoy full employment rights.

The usual outcome of a protected conversation is that of a Settlement Agreement (previously known as a Compromise Agreement) which will result in the ending of the employment. It must be noted that the company must allow the employee ten working days to consider the settlement option, although the employee does not have to take the full ten days.

There are occasions whereby it is not appropriate to enter into a protected conversation, if the reason the conversation is connected to an automatically unfair reason (whistleblowing / union membership etc.) or behaviour contravening the Equalities Act 2010 (discrimination / harassment etc.) Any such conversation should be dealt with appropriately in a without prejudice setting, ensuring that company and government (ACAS) guidelines are abided by.

ACAS state a without prejudice conversation is “a common law principle which prevents statements, whether written or oral, which are made in a genuine attempt to settle an ‘existing dispute’, from being put before an employment tribunal or other court as evidence in legal proceedings between those parties about that dispute”.

The key difference between the protected conversation and the without prejudice conversation is whether there is already an ongoing dispute between the employer and the employee. There is also a true belief that the issues can be resolved and the employment contract can be settled.