In 2013 ‘Protected conversations’ were introduced under the Employment Rights Act s 111A to allow employers and employees to have confidential discussions about ending an employment contract where there is no dispute about the termination. Protected conversations do have limitations as discussions will not be treated confidentially in cases of automatically unfair dismissal, breach of contract or discrimination. In cases where there is an existing legal dispute, the ‘without prejudice’ rule may apply to prevent statements made being used in court. The following 5 points should be considered when conducting ‘protected conversations.
1. Different types of discussions will protect different types of claim. The ‘without prejudice’ rule applies to a wider range of claims than discussions under the ‘protected conversation’ rule
2. The ‘without prejudice’ rule may protect pre-termination discussions, but will only apply if there is a genuine attempt to resolve an existing dispute
3. In cases of unfair dismissal, even if both parties wish to disclose contents of discussions, confidentiality cannot be waived under the ‘protected conversation’ rules, unless either party has engaged in ‘improper behaviour’ such as harassment, intimidation, bullying or undue pressure
4. The details and existence of a ‘protected conversation’ discussion may be protected and inadmissible as evidence in relation to an ordinary unfair dismissal claim
5. In cases where there is an unfair dismissal claim together with a discrimination claim, discussions in relation to the unfair dismissal claim must be ignored by tribunals, but not the discrimination claim