How to carry out a without prejudice (protected) conversation within the workplace

Employers have always experienced difficulties when attempting to hold genuine without prejudice discussions with employees in relation to matters where it was difficult to prove an existing dispute.

The difficulties experienced by employers in this regard prompted the government to introduce legislation to allow pre-termination discussions to take place more easily within the workplace. 

Without prejudice or protection conversations may now be held within the confines of that legislation provided the same is in accordance with the ACAS Code of Practice and comply with the rules which apply to such conversations. 

In that case, those protected conversations cannot be referred to in unfair dismissal proceedings but can to the contrary be taken into account in discrimination and breach of contract claims.

During the recent case of Graham v Agilitas IT Solutions Limited, the Employment Appeal Tribunal considered the rules applicable to protected conversations in the context of an unfair dismissal claim. 

This claim involved a Chief Executive Officer who was instructed by the company’s Board of Directors to speak to a Sales Director concerning his performance on a “without prejudice” basis.  The Sales Director subsequently raised the prospect of a constructive dismissal claim. 

The Employment Appeal Tribunal was tasked with determining whether or not the meetings were genuine without prejudice and/or protected meetings.  It concluded the meetings were both properly without prejudice and therefore protected. 

Although there was no dispute before the initial meeting there was the existence of a potential dispute and the Employment Appeal Tribunal, therefore, referred to the Sales Director’s threat of constructive dismissal proceedings.

It is essential that when employers are having or planning to conduct discussions with employees without prejudice or protected basis that the employer considers carefully what the nature of that discussion will be.

If the employer may wish to rely upon what is said in part of the meeting it will need to ensure that the meeting is “open”.  It cannot simply pick those parts which are and are not protected. 

In the latest case, the facts allowed the Employment Tribunal to find that there was a dispute that cannot in itself be relied upon as a matter of course and employers when having such discussions should seek legal advice on how to conduct those discussions and the potential consequences of the subject matter becoming disclosable before the courts.

Our lawyers at DPH Legal advise employers on a day-to-day basis on the correct process for conducting such discussions in the workplace so do not hesitate to get in touch if you require input in this regard.

Disclaimer: The contents of this article are for information purposes only and should not be relied upon as formal legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Specific legal advice should be sort tailored to the individual circumstances in all cases.


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