We have spotted an increasing trend in which employees are relying on without prejudice conversations in the Employment Tribunal, a problem which can only get worse now that fees are no longer a factor. These conversations are usually excluded from evidence, but there are some dangerous exceptions to be aware of.
If an employee is likely to react badly to the allegations against him or her, it is understandable to want to begin a without prejudice discussion before commencing disciplinary proceedings. However, there is a risk in doing so because without prejudice protection only applies to a "dispute". Employees often argue that a dispute has not yet arisen before the allegations have been confirmed, and so the discussion, or part of it, can potentially be relied upon. We would advise caution in this situation.
In 2013, the government introduced the idea of "protected conversations", to make it easier for employers to talk to employees about difficult issues. Protected conversations can take place before a dispute has crystallised but, despite their name, they often provide less protection than without prejudice. For example, they are only excluded when claims for ordinary unfair dismissal are heard, and so an employee just has to assert discrimination or whistleblowing for the conversation no longer to be protected. This means that they are of limited usefulness.
If an employee does try to argue that without prejudice does not apply, a preliminary hearing will often be needed to resolve the matter. Therefore, even if the evidence can be excluded from the main hearing, the discomfort of being cross-examined about it will not necessarily be avoided. As ever, however confident you are that without prejudice will apply, you always need to be careful what you say. Employees often do record such conversations, and so it is best to assume that there is microphone in front of you.