“Off the record” conversations – when can they be brought up?

Following the introduction of legislation several years ago for employers to enter into “protected conversations” with their employees, in a bid to encourage employers to talk more openly with employees about discussing and negotiating a termination agreement, many employers still feel unsure about what they can and cannot say.

The legal position between what is covered by a “protected conversation” and what is protected by the legal “without prejudice” principle vary, and this can lead to employers feeling confused and exposed to costly Employment Tribunal claims. As a result, many employers do not feel confident embarking on a discussion of that nature. Rather than carry out a lengthy performance management process, they avoid the issue and can lead the employee in post, often underperforming, leading to an impact on other employees and productivity levels.

A protected conversation is limited to before the termination of an employee’ employment, and is entered into with the aim of agreeing termination terms between the employer and the employee.

The terms of the agreement are normally recorded in a settlement agreement.

An employee is not permitted to rely on the “protected conversation” later in Tribunal, as grounds for them bringing an unfair dismissal claim against their employer. However, only issues which relate to an unfair dismissal claim are covered; it does not protect employers against discrimination claims: i.e. the employer cannot hide behind the label to act in a discriminatory way – that behaviour can be referred to in a discrimination claim.

In contrast, the “without prejudice” label can apply to all discussions in a blanket fashion (i.e. covering all negotiations, not those limited to particular employment claims), but there are ways in which those discussions can still be referred to in a subsequent legal actions if either party “waives” the protection.

What is of key interest to business is a recent case which clarified that “protected conversations” are completely inadmissible in unfair dismissal cases. It is not simply what was discussed, but the fact itself that settlement discussions existed at all and not simply the content.

The implication for employers is that an employee cannot even raise in a Tribunal the fact that the protected conversation took place, let alone its context and content. This provides greater comfort in being able to raise the idea of an exit without the fear of the discussions being referred to or aired in open court.

If you are planning to engage in an “off the record” chat with a member of staff and would like guidance of what can and cannot be said, or assistance and support in communicating with the employee, please contact our team of HR Consultants on 0808 168 5780.