Key Takeaways
- Both let you have an off-the-record conversation about ending employment, but they come from different places in the law and protect you to different extents.
- Without prejudice is a common law rule. It needs a genuine existing dispute, and it shields the discussion from being used in almost any later claim.
- A protected conversation is statutory, under section 111A of the Employment Rights Act 1996. It needs no existing dispute, but it only covers ordinary unfair dismissal claims.
- Because it’s narrower, a protected conversation gives an employer less cover than without prejudice when other claims are in play like discrimination.
- Getting the label wrong can cost you the protection entirely, so the choice definitely matters.
Off the record and protected conversation sound similar, but they aren’t interchangeable. One gives you legal protection. The other doesn’t. Walk into a conversation about parting ways assuming they’re the same thing, and you can lose the protection you thought you had – whichever side of the table you’re on.
Choosing the wrong one, or labelling a conversation incorrectly, can mean the whole discussion ends up in front of an employment tribunal after all. So, it’s worth understanding what each one actually does.
This guide sets out the difference in plain terms and when each one applies. If you’re facing a difficult employment situation and want advice, Osbourne Pinner offers a free 30-minute consultation with a solicitor. You can also read more about our dispute resolution services.
What does without prejudice mean?
Without prejudice is a rule that comes from common law, built up over many years of case law such as Rush & Tompkins v Greater London Council. The idea is simple and sensible: if two sides are genuinely trying to settle a dispute, they should be able to speak and make offers freely, without every word being held against them later if the talks fail.
The crucial condition? There has to be a genuine existing dispute, or at least a real prospect of litigation. If there is, anything said in a genuine attempt to settle it is privileged, which means it can’t normally be put before a court or tribunal in any later proceedings. That protection is broad, so it’s not limited to one type of claim.
A classic example is where an employee has raised a grievance alleging bullying. A dispute clearly exists, so the employer and employee can sit down for a without prejudice conversation to explore a settlement, knowing the discussion stays out of any later case.
What is a protected conversation?
A protected conversation is a creature of statute, introduced in 2013 through section 111A of the Employment Rights Act 1996. It was designed to fill a gap: what happens when an employer wants to raise the idea of an agreed exit, but there’s no existing dispute to trigger without prejudice protection?
Section 111A lets an employer and employee hold pre-termination negotiations even where the relationship is stable and no complaint has been made. That’s its big advantage. The employer can broach the subject of leaving on agreed terms, usually alongside a settlement offer, without implying any wrongdoing and without a dispute needing to exist first.
But there’s a significant catch, and it’s the point most people miss.
The catch: a protected conversation is much narrower
A protected conversation only protects the discussion from being used in a claim for ordinary unfair dismissal. That’s it. If the employee brings almost any other kind of claim, the protection falls away and the conversation can be referred to.
So a protected conversation gives no cover in claims for:
- Discrimination.
- Whistleblowing, or other automatically unfair dismissal.
- Breach of contract.
- Unlawful deduction from wages.
By contrast, without prejudice isn’t limited in this way. If a proper dispute exists, it shields the conversation across the board. That’s why without prejudice is usually the stronger protection in a situation that already involves a discrimination complaint or a grievance. And it’s why a protected conversation on its own is risky in these circumstances.
The improper behaviour trap
There’s one more thing that can strip away a protected conversation. That’s improper behaviour. If an employer applies undue pressure, uses threats or bullies the employee into leaving, a tribunal can decide the section 111A protection doesn’t apply and let the conversation in.
The point was tested in Gallagher v McKinnon’s Auto and Tyres, where the tribunal considered whether the way a pre-termination discussion was handled crossed the line. The lesson? The protection depends on behaving properly during the conversation, not just on saying the magic words.
So which one should you use?
It comes down to whether a dispute already exists:
- No existing dispute: You simply want to open a conversation about an agreed exit, for example in a straightforward redundancy or where the relationship just is not working. A protected conversation under section 111A is the natural tool.
- A dispute already exists: If there’s a live grievance or a discrimination complaint, without prejudice is usually the safer and broader protection.
In practice, the two can overlap, and a well-handled discussion is often framed carefully to rely on whichever protection genuinely applies. If you’re an employer, it’s worth stating clearly that a meeting is being held under section 111A, and labelling any follow-up correspondence the same way. This way, there’s no doubt about what you’re relying on.
Why the difference matters so much
Get this right and you can have an honest, constructive conversation that resolves a difficult situation cleanly. Get it wrong, and the words you thought were off the record can end up as evidence. Errors include assuming without prejudice applies when there’s no dispute, or relying on a protected conversation when the employee has a discrimination claim
This is one of those areas where a short conversation with a solicitor before you act is far cheaper than untangling a mistake afterwards.
Talk to a dispute resolution solicitor at Osbourne Pinner
Whether you’re an employer planning a difficult conversation or an employee who’s been offered a settlement, our dispute resolution solicitors can help you understand your position. We are a multi-office firm with solicitors in London (Piccadilly and Canary Wharf), Harrow and Manchester, advising both employers and employees on settlements and employment disputes.
We offer a free 30-minute consultation with a dispute resolution solicitor, Monday to Friday, with no obligation. It costs nothing to understand where you stand before you say anything on the record or off it. We do not offer Legal Aid.
Call us on 0203 983 5080, message us on WhatsApp, or email [email protected] to arrange your consultation.
Please note that this article is for informational purposes only and does not constitute legal advice. We always recommend speaking to a qualified solicitor for advice tailored to your specific circumstances.
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