Settlement agreements are often discussed with employees during without-prejudice conversations sometimes known as protected conversations. The reason for this is that the detail discussed during the conversation if it is without prejudice cannot be disclosed to a court or tribunal in due course. If you have any questions relating to this then speak to a settlement agreement lawyer for advice.
A without prejudice conversation is an off-the-record conversation which is separate from any procedure being followed in relation to the employee in question.
There are several criteria which are important for employers to follow when conducting without prejudice or protected conversations. It is important for employers to ensure that they do not threaten employees with dismissal during protected or without prejudice conversations due to the fact that this will be deemed to be in bad faith.
Employers should be careful to offer individuals a choice as to whether or not they wish to accept a settlement agreement, or alternatively, a different option which is to follow a formal internal work procedure.
A failure to offer an employee a choice may also give rise to an argument that the protected conversation is no longer protected and that is therefore in bad faith and on the record. If the conversation becomes on the record then it can be referred to court or tribunal proceedings.
With over 10 years of experience in employment law matters, David Philip Harris specialises in providing legal advice on settlement agreements to both employees and employers throughout the UK. David’s opinion and advice are frequently sought after as he contributes often to BBC Radio Berkshire and the People Management Magazine. David Is a long-standing member of The Employment Lawyers Association and The Law Society.