It is not uncommon for employers to want to enter into negotiations (with potentially problematic) employees on a without prejudice basis to see whether an exit from the business can be negotiated by mutual agreement. This can offer a quick, hassle free resolution to what can otherwise be a long, drawn out parting of ways, and is frequently seen as a less formal method of managing employee relations.
The hesitation, from employers, however, is that if an agreement cannot be reached, the employee may seek to rely on the informal discussion in any subsequent proceedings they might bring before the Employment Tribunal, either as evidence that any subsequent capability, disciplinary or redundancy proceedings were predetermined or, in-order to bolster a claim for constructive unfair dismissal.
Many employers, however, may not appreciate that protected conversations are different to the principles of the without prejudice rule, which generally only prevents anything written or said during a genuine attempt to settle an existing dispute from being presented as evidence.
In brief, the requirement of the without prejudice rule (as developed in common law) is that the parties to the conversation need to have moved beyond internal negotiations and procedures to the point where a decision has actually been reached and communicated by the employer to the employee. In practice, this means that employers are unable, with any degree of certainty, to ensure that conversations of this kind are really protected from being revealed in any subsequent litigation.
Protected conversations, on the other hand, are embedded in statute and prevent evidence relating to pre-termination negotiations from being admissible in unfair dismissal proceedings. There is no need for an existing dispute to be in existence. Better yet, the rules surrounding the inadmissibility of any such conversation apply to both the fact of the negotiations as well as the substance; they cover all discussions about the protected conversation (so the protection extends to internal discussions between management and HR as well as the particular conversation itself) and, as if this wasn’t enough, the right is absolute; it cannot be waived.
What this means is that protected conversations can be used much earlier than those conducted on a without prejudice basis and with significantly more certainty. Although, before caution is thrown to the wind, however it is not a mechanism that can be used to attempt to settle a wide range of potential employee disputes without the possibility of it being revealed at a later date.
Significantly, protected conversations cannot be used in cases which could result in an automatically unfair dismissal or where there is any suggestion of discrimination. It is also worth bearing in mind that the legislation prevents the use of “improper behaviour” when utilising protected conversations (which would include any discriminatory acts). Whilst there is no definition of what amounts to improper behaviour, ACAS has published some guidance on this which provides some helpful pointers. It suggests, amongst other factors, that putting undue pressure on a party to the protected conversation would be an example of undue pressure. Employers engaging in protected conversations should therefore provide the employee with sufficient time to consider the proposal being put to them. Whilst ACAS recommends a time frame of 10 days, this is only guidance and it is likely that this will be considered by most employers to be unnecessarily prohibitive in practice.
The benefits of utilising a protected conversation can hopefully encourage proactive discussions to take place between employers and employees and assist with some of those more difficult conversations.