What is the difference between a protected conversation and a without prejudice conversation?

Under section 111A of the Employment Rights Act 1996, a protected conversation allows employers to have confidential discussions around an employee’s exit, even where no dispute exists. Protected conversations are typically used to propose a settlement agreement and can be a key tool in negotiating the terms of an employee’s departure.

Both the existence and content of the conversation is “protected” meaning it is inadmissible in tribunal proceedings. However, a conversation will not be protected where claims involve discrimination, whistleblowing or breach of contract.

A without prejudice conversation allows parties to speak freely in an attempt to resolve an existing dispute without fear that their words will later be used against them in tribunal proceedings. Both the content and the existence of a without prejudice conversations are protected from disclosure.

To have a without prejudice conversation there must be an existing dispute between parties and the conversation should be part of a genuine attempt to resolve the dispute. If there is no existing despite, the protection does not apply, leaving the employer vulnerable to claims if the conversation is later disclosed. Without prejudice conversations cannot be used if the conversation includes improper conduct, such as bullying or harassment. However, unlike a protected conversation, without prejudice conversations can apply to all types of claims, including discrimination.

Solicitors use the phrase “without prejudice” to signal that a communication is part of a settlement negotiation and should not be admissible in court. It encourages open dialogue between parties by allowing them to make concessions or offers without weakening their legal position if negotiations fail and they were to take the matter to court.

Think of this phrase as a legal safety net – it protects the integrity of settlement negotiations by keeping them off the record (provided the correct process is followed).

If there is an ongoing dispute — such as a grievance, disciplinary issue, or concerns relating to discrimination or whistleblowing — a without prejudice conversation will be appropriate.

Where no dispute exists and a party wishes to exit amicably and without conflict, a protected conversation should be considered.

If you’re uncertain whether a dispute exists, always seek legal advice. Choosing the wrong approach could lead to unintended consequences.

Protected conversations are typically initiated by the employer, whereas without prejudice conversations can be initiated by either party.

Where no dispute exists and the employer wants to initiate a protected conversation it is important to let the employee know that you would like to meet and to notify them that the conversation is protected under section 111A of the Employment Rights Act 1996. The conversation should be approached professionally and clearly, ensuring both parties are aware of its purpose as well as the legal implications if correct processes are not followed. It is also important to allow time for the employee to reflect and to seek legal advice should they need to. Remember to keep the conversation strictly confidential. These conversations are inadmissible in unfair dismissal claims but not in discrimination or whistleblowing cases.

Where either party wants to initiate a without prejudice conversation, a genuine dispute must exist, and it is important that this dispute is confirmed to the other party for the legal protection to apply. Any written correspondence should be marked “without prejudice” and accurate records should be kept. The aim of this conversation is to settle the dispute, often via a settlement agreement, so it is important for both parties to stay focused on a resolution.

Technically yes, but this can be both legally and ethically problematic. It is worth keeping in mind that recording a conversation without consent could lead to a breakdown in trust between parties and may be challenged in a court or tribunal. We would recommend seeking mutual agreement before recording a conversation. If you are concerned, take notes or bring a companion to the meeting.

Both without prejudice and protected conversations are powerful tools, but only when used correctly. Choosing the right approach depends on the context and nature of the employment issue. If there is already tension between parties or a grievance which may escalate, a without prejudice conversation may be your best option. If the goal is to explore a mutual exit without prior conflict, a protected conversation will be more appropriate. Understanding the legal implications and limitations of both is essential to avoid unintended consequences.