Employment briefing: protected conversations

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By Gurpreet Duhra

It is a common misconception that simply labelling a meeting or discussion ‘without prejudice’ protects that discussion from future admissibility in legal proceedings. As a legal matter, the ‘without prejudice’ confidentiality rule only applies to without-prejudice discussions relating to the resolution of genuine disputes. There needs to be an existing dispute before the without-prejudice rule can be applied.

In many employment situations where an employer is seeking to offer settlement terms to an employee, there may be no existing dispute in the formal sense. This gives rise to an inherent vulnerability where employers are keen to promote the idea of a settlement. This has led to some fairly convoluted attempts to establish a dispute before beginning without-prejudice discussions or employers have simply accepted the risk in the hope and expectation that a settlement will ultimately be arrived at.

On 29 July 2013, legislative provisions brought into force a new regime of ‘protected conversations’. The legislation is supported by an ACAS Code of Practice. Compromise agreements were re-named ‘settlement agreements’ on the same date…

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Backdate to 2 September 2013