Off the record discussions are usually used to describe either ‘without prejudice’ conversations or a ‘protected conversation’.
‘Without prejudice’ conversations
‘Without prejudice’ applies when there is a dispute which employers are seeking to settle. The purpose of this is that it aims to encourage parties to resolve disputes without fear that anything they do say will be used as evidence against them or be seen as an admission of liability or wrongdoing. Without prejudice can apply to all forms of communication as long as it genuinely attempts to reach a resolution so marking a letter as “without prejudice” will not be enough if it simply sets out the employer’s stance and does not seek a compromise. Where communication is truly without prejudice it will be off the record and cannot be used in any tribunal proceedings. If not, then it can be used as evidence. Employers should also be aware that they can waive the without prejudice rule either expressly or impliedly.
The inadmissibility of without prejudice discussions will only apply where there is a pre-existing genuine dispute between employer and employee and where the employee understands the purpose of without prejudice discussions and agrees to communicate on that basis. Additionally, if the exclusion of the communication can be used to hide perjury, blackmail or unambiguous impropriety then the protection falls away and what has been said during without prejudice communications can be used in a tribunal claim.
Protected conversations were introduced in 2013 by s111A of the Employment Rights Act 1996. These conversations are used when there isn’t a pre-existing dispute but the employer is considering terminating employment and they wish to avoid a drawn out dismissal process or the reason for dismissal is not one of the potentially fair reasons. In this situation, the employer can use a protected conversation to agree a termination by offering a settlement to the employee off the record.
Being protected, any conversations regarding the ending of employment and the settlement offer will not be able to be used as evidence in any resulting ordinary unfair dismissal claim. This protection will be lost if there is improper behaviour during the conversation and this covers bullying, intimidation and placing undue pressure on the employee to accept the offered settlement. There are limits to how off the record these conversations are because the contents of the discussions are only protected in ordinary unfair dismissal claims, so they can be used as evidence in any other tribunal claims such as discrimination, whistleblowing or automatic unfair dismissal.
These are complex areas of law and should always be discussed with a HR expert before utilised.