Without prejudice and protected conversations. What’s the difference and how are they useful?

Put simply, the rules around without prejudice and protected conversations can be used to prevent discussions or exchanges from being admissible to a court or tribunal as part of a claim.

In the employment setting the idea is to help businesses have open conversations with their employees, without worrying about tripping themselves up in any future litigation because of admissions made with the aim of securing a settlement.

However, the differences between the two and the situations where they do and don’t apply can be a little tricky to get your head around, so here’s a brief summary:

Without Prejudice

• Without prejudice communications need to be in relation to an existing dispute between the parties. Generally, this will  mean an employee has brought or is reasonably contemplating bringing a claim.
• They can apply to any type of claim. They do not protect acts of ‘unambiguous impropriety’.
• They can be expressed as ‘without prejudice except as to costs’, which means the exchange would only be admissible in relation to an application for costs.
• They must be related to a genuine attempt to settle the dispute.

Protected Conversations

• More properly called pre-termination negotiations, as they refer to any offers or discussions that occur before the termination of employment that are made with a view to the termination going ahead on mutually agreed terms.
• They protect both the details and the existence of the conversation from being admissible.
• They do not require for there to already be a dispute. - These only apply if an employee brings a claim of ordinary unfair  dismissal. Other claims, including automatic unfair dismissal and discrimination, would not be covered.
• They do not cover ‘improper behaviour’.  
• These are always admissible in relation to applications on costs or expenses. - They must be also part of a genuine attempt to reach a settlement.

‘Unambiguous Impropriety’ v ‘Improper Behaviour’

Aren’t these basically the same thing? Not quite. Unambiguous impropriety would include things like perjury and blackmail and only provides an exception to the without prejudice rule in the clearest cases of  abuse of privilege. Improper behaviour is generally wider. It would include anything that would be considered unambiguous impropriety as well as acts such as victimisation, discrimination or undue pressure. For example, giving an unreasonably short timescale for responding to a settlement offer might be improper behaviour, but not unambiguous impropriety.

Finally, it’s important to not just blanketly start every communication by saying ‘without prejudice’ and assume that you’ll always be covered. There are situations where this would be neither an appropriate nor effective approach. As ever, how these concepts work in practice will depend on the particular facts and circumstances of any given scenario.