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

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

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.

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

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

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’

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

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