Terms like ‘protected conversation’ and ‘without prejudice discussions’ are not commonly used in everyday employment contexts, so it is important to understand these concepts, particularly if you are an employee considering your options and deciding whether to accept an offer to terminate your employment. Employment solicitor Laura Colebrook explains when and why the terms are used, and the implications…
Both ‘protected conversation’ and ‘without prejudice discussions’ are terms often used by employers to protect them from having what is discussed in negotiations potentially used by employees in future legal proceedings.
A protected conversation allows employers and employees to discuss ending employment and negotiating a settlement agreement/compromise agreement, even where no dispute exists. In contrast, “without prejudice” normally applies when there is an existing workplace dispute and protects settlement discussions from being used as evidence.
It is important to note that employees do not have to enter into “without prejudice” discussions or “protected conversations” if they do not want to.
What is a Protected Conversation?
A protected conversation, also known as a pre-termination negotiation, is a discussion between an employer and employee about ending employment on agreed terms.The purpose of protected conversations is to allow open and honest discussions without fear that the content will later be used in legal proceedings. This creates a safe environment for negotiating a severance package or settlement (compromise) agreement.
There are, however, important limitations placed on an employer when having a protected conversation:
- They cannot dismiss an employee or threaten dismissal during a protected conversation.
- They cannot discriminate against an employee in such a discussion e.g. if the employee believes they may have been selected for the discussion because of their gender, race, age, etc
- Any allegations of whistleblowing, breach of contract, or discrimination in the discussion can still be referred to in future legal actions.
What Does “Without Prejudice” Mean?
The term ‘without prejudice’ is often used in employment negotiations. It applies to communications made in a genuine attempt to resolve a dispute and prevents those discussions or correspondence from being used as evidence in court or tribunal proceedings.
This principle encourages both parties to speak freely and explore settlement options without risking their legal position. It is common to see “without prejudice” combined with “subject to contract,” meaning that the discussions are not legally binding until they are formally agreed and signed.
What is the difference between protected and without prejudice conversations?
Although both types of conversation are intended to encourage open discussions about settlement, there are key differences:
- Protected conversations can take place where there is no dispute
- Without prejudice conversations require an existing dispute
- Protected conversations are specific to employment law
- Without prejudice is a broader legal principle that applies across different areas of law
Both may be used in settlement agreement discussions, but they operate in different ways and are subject to different limitations.
When are these conversations used in practice?
In employment situations, protected and without prejudice conversations are often used where an employer and employee are discussing a possible exit and the terms of a settlement agreement.
For example:
- An employer may initiate a protected conversation where they wish to propose a mutually agreed termination of employment
- A without prejudice conversation may arise where there is already a dispute, such as a grievance or potential claim
In some cases, both protections may be relied upon at the same time, depending on the circumstances.
Are these conversations always confidential?
While both protected and without prejudice conversations are intended to be confidential, that protection is not guaranteed in every situation.
The protection may be lost if:
- there is no genuine dispute (for without prejudice)
- there is improper behaviour
- the conversation relates to claims where the protection does not apply
Because of this, it is important not to assume that everything said in these discussions will automatically remain confidential.
How do they relate to settlement agreements?
Protected and without prejudice conversations are most commonly used as part of negotiations leading to a settlement agreement.
A settlement agreement is a legally binding contract that brings an employment relationship to an end on agreed terms, often including a financial payment and other conditions such as confidentiality.
Understanding the context in which discussions take place can be important when considering your position and your options.
Tips if your employer invites you to a ‘protected and/or without prejudice conversation’
- Use the opportunity to listen to what your employer has to say, but do not agree to, sign, or respond to any offers in the meeting
- If your employer says something you don’t understand in the meeting, ask them to clarify any points
- Take notes of what your employer says for future reference and in case there is any dispute over what was discussed at a later point.
Protected or without prejudice conversations before signing a settlement agreement
If an employer invites an employee to a “without prejudice” discussion or “protected conversation,” it can sometimes be a prelude to, or part of, offering a settlement agreement, ensuring that discussions cannot be used as evidence in future tribunal claims.
If offered a settlement agreement, an employee is legally required to obtain legal advice before signing. In most cases, an employer will offer to pay a fixed contribution toward the employee’s legal fees, typically ranging from £500 to £750 + VAT.
If an employee appoints a solicitor, that solicitor will work for them, not their employer, because the solicitor’s job is to ensure the terms are fair to the employee and that the employee understands what they are signing. An employment solicitor will explain what rights the employee is giving up, assess whether the terms are lawful, and help the employee understand whether the agreement is reasonable in light of their circumstances.
How we can help if you are invited by your employer to have a ‘protected and/or without prejudice conversation.’
It is important to understand that if you have an off-the-record, ‘protected, or without-prejudice conversation’ with your employer, you cannot refer to what was said in the conversation if you later take your claim to an employment tribunal.
You may wish to obtain legal advice before agreeing to a ‘without prejudice or protected conversation’, particularly if it involves an employment dispute or potential termination. Legal advice is essential if you are offered a Settlement Agreement or if you feel you have been dismissed or disciplined unfairly.
If you have been invited to a ‘protected and/or without prejudice conversation’ and would like to discuss your employment rights, or any other employment law issues, please contact: