 Hi there, I'm Mike, HR Trainer at Co-operative UK. Sometimes your business will need to have an off-the-record discussion to terminate an employee's employment contract. This could be because you want to avoid following a full disciplinary, absence or performance process. It may be that you need to exit a senior employee quickly. On the flip side, it may be that you need to come to a resolution over grievance with an employee. So let's have a think about the benefits to your business of having an off-the-record chat. One, it may be that the employee wants to leave and is looking for you to raise the idea. Two, it can save management time, bypassing a long conduct, capability or absence process. Three, if there is legal risk for your business, agreeing a termination package off the record can reduce those risks. An employee may welcome your proposed termination package, but what happens where discussions break down? At an employment tribunal hearing, your employee may tell the tribunal about your off-the-record discussion to prove that your working relationship has broken down. So how does your business stop these discussions from becoming public? There are two types of discussion which are protected from disclosure under UK law. If you have an off-the-record discussion on either a without prejudice basis or by entering into a protected conversation, your employee will not be able to retell your discussions at any tribunal. Let's look at what are the advantages and disadvantages of having a without prejudice conversation and when you can use one. You'll be familiar with the use of without prejudice communications in a legal setting. Without prejudice is usually written on settlement agreements. Your lawyer will have agreed with the employee's lawyer that his discussions break down, the agreement and negotiations cannot be talked about at tribunal. So when can you use a without prejudice conversation in a HR setting? You will need a dispute to have started between your company and the employee. So what is a dispute? The law says that one party must have in mind that if the disagreement is not resolved, it will look to resolve the matter at court. Yep, not very clear is it? And this is the disadvantage of relying upon conversations being without prejudice. What we know from case law already is that a general falling out between colleagues is not enough to amount to a dispute. Even being angry about something at work may not amount to a dispute. Aggravance may not even amount to a dispute if the person doesn't have the intention to pursue it further. So what has to happen is that the employee has in mind that they are going to take the matter further. If you've received a letter from an employee's solicitor, that is a pretty good indication that they are going to take things further. Ultimately, it only matters if the employee doesn't want to agree to the termination or propose package. And this may happen if you propose a very poor package which annoys the employee. Let's have a think about some top tips for holding a without prejudice conversation. So the first one is timing. Don't start to have your discussions too early in any HR process. Hold it later in the process. Listen to the employee. Do they sound as if they may take things further? Perhaps have a chat with their trade union representative to find out their thoughts. Improper behaviour cancels out the whole without prejudice rule. Don't say anything which may be discriminatory, offensive or insulting. Prepare. Preparation before the meeting will help it run more smoothly and reach the desired outcome. Have in mind a plan of what you are prepared to offer the employee as a termination package or payment. Let's have a look at the alternative, which is to hold a protected conversation. No dispute is needed before you can hold a protected conversation. This is useful for situations where the employee is unaware that there is a problem in the workplace or that you are considering terminating their employment. Your discussions may come as a complete surprise. The fact that a dispute isn't needed before a protected conversation is a major advantage over the alternative of holding a without prejudice conversation. However, the big downside of using a protected conversation is that your discussions or paperwork are only protected from being disclosed by the employee in unfair dismissal proceedings. This leaves the employee able to bring any other type of employment tribunal claim and recount your discussions, a very large disadvantage, particularly if the employee brings a discrimination claim where they could be awarded unlimited compensation. Remember that improper behaviour cancelled out your ability to use without prejudice discussions? The same applies to protected conversations. This employer's behaviour would obviously be improper, but also improper is applying pressure upon your employee to accept any proposed termination or compensation package. Remember discrimination always amounts to improper conduct. So that's the choice. Both have advantages and disadvantages. If you decide to use either of the two types of conversations you've learnt about here, here are some best practice tips. Invite the employee to a meeting setting out that you intend to have a without prejudice conversation or protected conversation. It is best practice to allow the employee to bring along a trade union representative or a work colleague. It's obvious I know, but make sure that you hold the meeting in an appropriate place away from other colleagues. Preparation will help the meeting run more smoothly. Have in mind a plan of what you are prepared to offer the employee as a termination package or payment. Check how much notice pay the employee would be entitled to if you followed the full process and remember that both parties will save money if the payment is tax free. All termination payments are tax free under £30,000. When you start your meeting, confirm with the employee that they are happy to have a without prejudice discussion or protected conversation. Explain what these concepts mean so that the employee can understand that they won't be able to use the discussions as any part of an employment tribunal claim. Here are some useful phrases to start your talks. As you know, we have been having discussions about or you will be aware that the business has been keep to the facts rather than opinions. The ACAS conciliation service recommends that you give your employee at least 10 days to get legal advice on the settlement agreement and make their decision. If you can, give the employee a copy of the settlement agreement that your solicitor has drawn up or record the main terms that you have agreed. Confirm to the employee that any HR processes which have started will be put on hold for a short period whilst the employee considers your offer. However, should they reject the offer, the process will continue. Do not say that the employee will be dismissed if the process continues. So there we go, I hope that has been helpful. If you need more help, contact our helpline at