‘Without prejudice’ and ‘protected conversations’ can be used to protect exit negotiations but are often confused leaving you unknowingly exposed. Both have their uses! Here’s what you need to know:
Protected conversations
A better label would be ‘partially protected conversations’ as they allow you to discuss an employee’s exit with them without exposing you to claims for unfair dismissal. But, all other claims are fair game!
Be aware though – even the protection in respect of unfair dismissal falls away if there’s the suggestion you’ve behaved improperly and put the employee under undue pressure. So, there’s a place for them provided there’s no risk of claims beyond unfair dismissal.
Without prejudice
There has to be a dispute in play for this protection to work (so think grievance, informal allegations etc). Assuming there’s a dispute, ‘without prejudice’ conversations protect against all claims, including discrimination and whistleblowing.
The protection falls away if there is ‘unambiguous impropriety’ on your behalf so it’s not a magic answer to everything.
Take early advice
Always speak with your employment lawyer before entering into settlement discussions – if early discussions aren’t protected effectively they’re hard to unpick. We’re here to help.
