Articles | Five things you must know about…‘off the record’ discussions

Ian Machray explains the five golden rules for speaking ‘off the record’.

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Ian Machray

Ian Machray

‘Off the record’ discussions with an employee can be a useful tool for quickly working through a problem and reaching a solution that is acceptable to everyone. However, employers need to be careful to ensure that the conversation isn’t going to be used to support a claim against them or is going to damage employee relations.

1. Know your ‘without prejudice’ from your ‘protected conversation’

Under the ‘without prejudice’ rule, details of settlement offers made to employees are normally inadmissible in a court or tribunal. However, the rule only applies when the parties are already in dispute and does not assist employers who wish to negotiate an amicable exit.

In an effort to tackle this problem, the government introduced ‘pre-termination negotiations’ (also known as ‘protected conversations’), allowing parties to hold settlement discussions before a dispute has arisen which cannot be referred to in ordinary unfair dismissal proceedings (unless there is ‘improper behaviour’).

‘Protected conversations’ can be a useful tool, but employers should bear in mind that the protection only applies in respect of ordinary unfair dismissal claims, not discrimination or other claims.

2. Assume that what you say will be repeated in a court or tribunal

The limitations to the ‘without prejudice’ and ‘protected conversation’ rules mean that it is very difficult to have absolute certainty that what you say is not going to be repeated back to you in a court or tribunal. Accordingly, employers must be careful about what they say and how they say it.

You should assume that anything that you say could be relied upon by an employee in a tribunal claim against you. You should therefore not say anything that could support or give rise to an employee claim.

For example, you may wish to present a settlement offer as merely an option for the employee to consider, rather than threatening that if it is rejected they will be dismissed in any event. You may also wish to consider having different people dealing with the settlement discussions and any open proceedings, such as any ongoing disciplinary or grievance process.

3. Act reasonably

It is particularly important when trying to establish that your discussion is a ‘protected conversation’ that you have acted reasonably in how you have put the proposal to the employee.

They will need to understand the offer that has been made, why it has been proposed and what the impact would be on them if accepted. They will also need time to consider the offer and take legal advice. Deadlines should accordingly be set with caution.

4. Keep a record

Employers often fail to keep an internal note of settlement discussions, on the basis that they are entirely ‘off the record’. However, this is a mistake.

If an employee seeks to refer to an ‘off the record’ conversation in a tribunal or court you will want to hold an accurate contemporaneous record of what had been discussed to help protect you (assuming you have followed rules 2 and 3!).

Also, a clear record of what has been offered and accepted will help ensure that there are no complications when it comes to recording any final agreement.

5. Open conversation vs ‘Off the record’

Employers should be aware that if they have a ‘protected conversation’ with an employee, they will not be able to change their mind at a later date and seek to rely upon ‘protected conversations’ in subsequent unfair dismissal proceedings.

It is accordingly crucial that any open communications are kept very clearly separate from any ‘off the record’ discussions. A failure to properly distinguish between the two types of communication may make it difficult for you to establish that you have followed a proper procedure. For example, if the employee’s grievance is only discussed and investigated under the cover of a ‘protected conversation’, you may be unable to establish to a tribunal that you have properly considered it.

Summary

In our experience, the vast majority of ‘off the record’ discussions proceed without problem, however, we sadly have seen many discussions which have upset relations or have even resulted in claims. We really would recommend that you give us a five minute call before you speak to your employee, as it could save a lot of time and cost later.