‘Off the record’ conversations with employees
Employers may, from time to time, want to have an ‘off the record’ conversation with an employee, usually as a precursor to the termination of the employee’s employment under a settlement agreement.
Telling the employee that the conversation is ‘off the record’ will not, of itself, mean that it cannot be referred to in employment tribunal proceedings. There are, in fact, two ways in which an employer can have an ‘off the record’ conversation with an employee.
- Without prejudice rule – to be able to rely on the without prejudice rule to ensure that a conversation cannot be disclosed, there must be an existing dispute between the parties. The offer being made must also be made in a genuine attempt to settle that dispute.
- Protected conversation – where there is no existing dispute, an employer can choose to hold a protected conversation. The content of protected conversations cannot be relied on by an employee in ordinary unfair dismissal proceedings, and neither can the employee resign and claim constructive unfair dismissal in response to a protected conversation. However, it’s important to note that this protection does not extend to discrimination claims, automatic unfair dismissal claims or whistleblowing. It is, therefore, much more limited in its application than the ‘without prejudice’ rule.
Employers are not able to rely on either the without prejudice rule or the protection of the conversation if they have acted improperly in the way in which they have held the discussions. For example, if they have told the employee they will be dismissed if they don’t agree to settlement terms or they have intimidated the employee in some way. Before starting a settlement discussion with an employee, employers must consider whether it will be protected and on what basis. Note that a discussion which starts life as a ‘protected conversation’ often progresses to being ‘without prejudice’ once the parties are in dispute.
