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Our Guide to without prejudiice or Protected Conversations provides comprehensive insights on handling confidential discussions, ensuring legal compliance and effective communication.
Use this model guide to assist you to hold an off-the-record conversation with an employee. Employers and employees may get to a point where ‘the writing is on the wall’ and it often suits both sides to have a frank discussion over what it would take to amicably bring the relationship to an end.
Introduction
Frequently managers find themselves frustrated by formal processes and spending lots of time dealing with a problematic member of staff, and wanting to just ‘cut to the chase’ and bring the employment to a clean end so that all parties can move on.
Often this would be beneficial all round, but clearly there are legal risks to having those sorts of conversations. There are two mechanisms which enable employers to enter into discussion of this nature – the ‘without prejudice’ common-law principle, and the concept of ‘protected conversations’.
This guide explores the limitations and realities of both, and gives some guidance on how to identify which option to use, as well as how to maximise the chances of a settlement being accepted.
Without prejudice
The ‘without prejudice’ rule is that conversations or negotiations entered into with a view to settling a dispute cannot be used as evidence if the dispute subsequently ends up in legal proceedings. However, this
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This guide provides valuable information on conducting off-the-record or protected conversations within the workplace. It explores the legal context, benefits, and limitations of these discussions, offering employers guidance in handling delicate matters like performance concerns, contract terminations, and potential exits. The guide aims to enable employers to navigate sensitive conversations discreetly, fostering an environment of trust, and facilitating potential resolutions.
Check which resources should be implemented before and/or after the Managers guide to without prejudice or protected conversations, to understand the workflow.
Our Protected Conversation Script Template facilitates sensitive discussions, allowing employers to explore options without risk of legal recourse.
This Managers guide to without prejudice or protected conversations incorporates relevant UK laws and HR standards, including those listed below:
Section 111A of the Employment Rights Act 1996 (ERA 96) allows employers to hold off the record conversations with employees that cannot be referred to in any later unfair dismissal proceedings (known as S111A conversations).
Employment Rights Act 1996: Allows for "protected conversations" between employers and employees regarding termination, with their contents being inadmissible in certain unfair dismissal cases.
Equality Act 2010: Prohibits discrimination based on protected characteristics and ensures off-the-record conversations do not lead to discriminatory actions.
Data Protection Act 2018 (incorporating GDPR): Requires handling of personal data discussed during conversations in compliance with data protection principles.
Whistleblower Protection (Public Interest Disclosure Act 1998): Protects employees who disclose certain information about wrongdoing in the workplace from being dismissed or subjected to detrimental treatment.
Confidentiality Clauses (Non-Disclosure Agreements): Employment contracts and settlement agreements may include confidentiality clauses restricting the disclosure of certain information.
Yes. This template has been designed for organisations of all sizes, including small businesses, charities and growing employers. It follows UK employment law best practice and can be adapted to suit your organisation.
Our templates are developed with UK employment legislation, Acas guidance and HR best practice in mind and are reviewed and updated as relevant requirements change. However, every employment situation is different, so the template should be adapted to the circumstances and checked against the employee's contract and your organisation's procedures before use.
Yes, we highlight the areas of the document that you need to update with your own details, and where you need to make decisions to suit your situation. This saves you time and ensures that you meet best practice.
Yes. Once purchased, you'll be able to download it instantly. Templates are provided in editable format (such as .doc or .xls) so you can customise them easily, and in PDF format for easy sharing.
If you're looking for broader support, we also offer toolkits and library bundles that include the Managers guide to without prejudice or protected conversations, along with other HR templates and policies for fully managing your situation. These may be more cost-effective if you need deeper advice.
AI can produce a document quickly, but effective HR documentation needs to be more than well-written words. It needs to reflect relevant UK employment law, HR best practice, practical considerations and the circumstances in which it will be used. These resources have been professionally developed around that wider HR context, drawing on extensive practical experience, rather than simply generating a generic document from a prompt.
Darryl Horn, Chartered HR Director
Darryl is a Chartered HR professional with over 25 years' experience in senior HR and employee relations roles. He has extensive practical experience of managing settlement agreement and appeal processes and founded hrdocbox to provide businesses with practical, professionally developed HR resources grounded in UK employment law and best practice.
"Darryl has proven himself to be reliable, professional and conscientious. He provides support and advice with excellent judgement, and has a strong understanding of people, policies and UK employment legislation."
"Darryl is someone I trust; he is consistent, dependable, and committed to doing things properly. I have confidence in him and no hesitation in recommending him."
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