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“Without Prejudice” vs “Protected Conversation” – When should they be used?

A man standing over a man sat a desk with his head resting on his hand to help illustrate resolution disputes.

This article aims to give you some knowledge about the difference between a “Without Prejudice” and a “Protected Conversation” process, when they can be used and when the details of a “private” conversation may be admissible in court.  

Read on to find out more about how and when you can use these tools to help you.

What Can You Do When Working Relationships Turn Into Disputes?

A broken employment relationship can be difficult and painful to address for business owners and Directors.

Dealing with these situations can often be confrontational, and many managers are uncomfortable with this kind of communication.

“Without Prejudice and Protected Conversations” are a way of communicating an employer’s point of view without fear of the conversation being used against them in a tribunal hearing.

This approach is designed so that a company or organisation can try to resolve any disputes as amicably as possible for the benefit of all parties involved.

It is always best to take specialist advice before starting these conversations to ensure you follow the legally defined process.

What is a “Protected” Process?

A “Protected” conversation or communication can be used to try and avoid legal action when there is either an ongoing workplace dispute or a dispute that is foreseen.

It can be useful to bring the issue to a swift close and save costs for both the employer and the employee.                                                                  A graphic of two shaking hands after resolving a dispute, with traffic lights in the background.

What is a “Without Prejudice” Conversation or Communication?

A “Without Prejudice” conversation can only be used legitimately if there is an existing dispute and the offer to settle any claim is a genuine attempt to resolve the dispute. This means that both parties must have considered that legal action is either likely or, at the very least, a possibility.

Any written communication between the parties must have a heading of “Without Prejudice Save as to Costs”. This indicates that the intention of the written communication is to negotiate positions and a potential outcome without incurring extensive legal fees or entering into court proceedings.

Any communication should also reference Section 111A of the Employment Rights Act 1996.

This part of the Act allows for “off the record” communications to take place in order to try and settle workplace disputes.

What is the difference between “Without Prejudice” and “Protected Conversations”?

Conversely, a “Protected Conversation” can happen without an existing dispute being raised first. However, it can only be used if it is reasonably certain that the employment relationship will be terminated. It cannot be used for more mundane employment-related disputes like pay or benefits.

It is really important that in any Protected Conversation, the discussion stays purely on a professional basis, centred around the issue at hand i.e. strictly a workplace issue that is not connected to “Protected Characteristics” (See Equality Act 2010) or victimisation of the employee in any way.

Some examples of when a “Protected Conversation” may be enacted may be around poor performance that is unlikely to improve, lack of skill set that cannot easily be trained or where both the employer and employee are simply unhappy with the working relationship.

Can “Without Prejudice” and “Protected Conversation” Evidence be used in court?

There is a common misconception that a “Without Prejudice” conversation or written word cannot be used against a party in a tribunal or court of law as evidence. Whilst this is true, it only applies in certain circumstances.

If the conversation contravenes the Equality Act 2010’s “Protected Characteristics” such as a claim for discrimination for instance, then the court can allow the “Without Prejudice” discussions to be admitted.

This is also likely to be the case for any automatically unfair dismissal claims such as Whistleblowing, Contractual Breaches or Unfair Dismissal.

What Does the Case Law Tell Us?

There are two cases that highlight the above and how companies may fall foul of when relying on the Section 111A legislation.

In the case of Faithorn Farrel Timms vs Bailey, the employer used discriminatory language and therefore, the court allowed the submission of the protected conversation.

Conversely, in the case of Nolan vs Redway European, the employee’s case was not upheld when they were described as “shocked and devastated” at the Settlement agreement offer made by the Company. The employer was not obliged to forewarn the employee of the meeting, and there does not have to be an existing dispute to hold a “Protected Conversation.”

The “Protected” approach can be a very useful tool for an employer in resolving disputes.

However, we would always advise anyone considering this form of action to seek professional advice beforehand.

If you need any help or advice on managing absence, then please give us a call on 01903 754 107 or contact jon@hrsmartuk.com

 

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