Julian Yew & Anna Henry examine the pros & cons of the forthcoming “protected conversations” law
Contracts of employment may be lawfully terminated provided that employers go through the correct procedures under the Employment Rights Act 1996 (ERA 1996) and follow any contractual procedures. Procedures can, however, be laborious, stressful and time-consuming for employers. Negotiated departures are thus frequently carried out by employers purportedly on a “without prejudice” basis.
The government recently announced that it plans to introduce “protected conversations” so that “a boss and an employee feel able to sit down together and have a frank conversation at either’s request”. Such “pre-termination negotiations” will not be admissible in an unfair dismissal claim unless there has been “improper behaviour” by the employer.
Without prejudice conversations
The “without prejudice” rule, which is a form of privilege, is that written or oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, may generally not be admitted in evidence. In Cutts v Head [1984]
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