Without prejudice conversation: tips for employers

'Without prejudice' is a term often heard in HR circles. 

But what does it actually mean - and how can it impact SMEs? In this blog, we look at 5 business tips to managing without prejudice conversations.

What is a without prejudice conversation?

Without prejudice is principle that means conversations related to a dispute are protected. Without prejudice conversations are sometimes called 'protected conversations'. 

The without prejudice principle prevents conversations (that have formed part of  negotiation about an employment dispute) from being raised as evidence in a later employment tribunal or court claim over that same dispute. This also covers written communications related to the dispute, under the principle. 

Negotiations often take place as without prejudice when either an employer or an employee wants to settle a dispute, so that the employee can leave the company easily and quickly. Sometimes the dispute is settled with a financial offer that facilitates the termination. 

Examples of without prejudice conversations

Without prejudice conversations are typically used for coming to a pre-termination agreement. The conversation is open and risk-free and allows both parties to discuss a possible settlement, but without it being referred to in a later unfair dismissal claim or employment tribunal.

Should without prejudice conversations be recorded?

As without prejudice conversations and statements cannot later be referenced, they're often called 'off the record'. They are 'off the record' in that they can't later be brought up as part of legal proceedings.

But don't confuse that with informal communication by not recording them - without prejudice conversations should be noted & put in writing. 

How should employers document the conversation?

Even if a conversation is intended to be without prejudice, it’s still important to keep a clear and accurate record.

It’s a good idea to note what was discussed, when the conversation took place and who was present. Label any written communication, such as emails or letters, with “without prejudice” so there’s no confusion later.

Keeping this information secure, and making sure it’s only accessible to the right people, supports transparency and shows the conversation was handled fairly and with care.

5 tips for managing without prejudice conversations

Here are some tips on how to handle without prejudice conversations:

1. Keep careful notes

Take notes and clearly mark conversations and written communications as being without prejudice. That includes any minutes, emails, letters or other notes. All of these should be clearly labelled as notes of conversations that took place under the without prejudice principle.

2. Ensure your without prejudice conversation is legal

The without prejudice principle only covers situations where there has been an existing dispute between the two sides. For example, you can't use a without prejudice conversation to offer an employee a financial reward for leaving the company. There has to have already been an employment dispute, and you also must have already genuinely tried to settle it. 

You should be careful to ensure the conversation really does come within the without prejudice principle. Just announcing that the meeting is without prejudice or labelling the communications as such is not enough to stop your employee from using it in a later court case or tribunal if you have not truly met all the conditions of the without prejudice principle.

3. Treat employees fairly

Don’t harass, bully or pressurise your employee into agreeing to anything. Don’t use offensive language or become aggressive. This is an open conversation whereby you want to make an offer or reach an amicable agreement. Make sure you set out all the terms of the offer from the start and that you treat your employee fairly and respectfully. 

4. Don’t exert undue pressure

You need to give your employee reasonable time to consider your offer. ACAS recommends that this is ten days. You also cannot reduce your offer over time in the hope that the employee will come to a faster decision. You also cannot say that you will dismiss them anyway if they refuse the offer.

5. Put the final agreement in writing

If you come to a settlement agreement, for it to be legal you need to put it in writing and you must also specify the exact complaint or dispute that it relates to. It’s not enough to say something like “this agreement settles all claims”. 

If things aren’t working out between you and your employee – for whatever reason – a without prejudice conversation could help you to reach an agreement about termination with them, without fear of a later claim for unfair dismissal.

Tread carefully though. It’s a sensible precaution to receive legal advice before taking any action so that you can be certain that you are proceeding correctly and that your actions aren’t exposing the company to any unnecessary risk.

Frequently asked questions

Are without prejudice conversations always legally protected?

They can be, if the right conditions are in place. There needs to be a genuine employment dispute, and both sides must have made an effort to resolve it.

If those conditions aren’t met, the conversation might not be protected and could potentially be referred to in a tribunal. If you’re unsure, it’s a good idea to seek legal advice before having the conversation.

What’s the difference between a without prejudice conversation and a protected conversation?

A without prejudice conversation can only happen when there’s already a clear dispute between an employer and employee, and both sides are trying to resolve it. If that dispute doesn’t exist, the conversation might not be protected.

A protected conversation, on the other hand, doesn’t need a dispute to exist. It’s a way for employers to have an open and honest conversation with an employee, usually about ending employment on agreed terms.

Both types of conversation have rules around when they apply, so it’s always a good idea to get legal advice before starting either.

Can employees record the conversation?

Yes, an employee can record the conversation. However, whether it’s legally protected still depends on whether it meets the conditions of the without prejudice principle.