1. Officials’ Conference 17 January 2017
Workshop 3
Employment Law: Without Prejudice and Protected Conversations

2. Without prejudice
Pre-termination negotiations (s111A
Employment Rights Act 1996) (aka
‘Protected Conversations’)

3. Without Prejudice Meaning Rationale Applies to all types of litigation
Must be an existing dispute
Must be genuine attempt to compromise
Marking document ‘without prejudice’ is a strong indication but not conclusive.

4. Cannot be used as a cloak for ‘perjury, blackmail or unambiguous impropriety’
discrimination

5. Pre Termination Negotiations (s111A ERA 1996)
Acas [statutory] Code of Practice on Settlement Agreements
Acas Guidance on Settlement Agreements: a Guide

6. Aka ‘Protected Conversations’
Effect of protection
Limits
Only applies to ‘ordinary’ unfair dismissal
Does not apply to automatically unfair dismissal, discrimination, breach of contract
‘Improper behaviour’

7. Acas good practice recommendations
Set out reasons for proposals
Reasonable period of time to consider proposals
Agree meeting in advance
Allow employee to be accompanied
Include details of payments and timings
If no agreement is reached, ensure that any subsequent actions comply with Acas Code discipline grievance

8. Interaction between pre-termination negotiations and the without prejudice rule
Claims involving both unfair dismissal and claims not covered by s111A