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Is it possible to have an off the record conversation with an employee about them leaving the company and can this later be used against us?
Under a recent change in the law you can have a protected conversation with your employee about terminating their employment. Either party can initiate the conversation.
These confidential discussions can be useful where you wish to avoid a drawn out or difficult disciplinary or dismissal process. You can use the protected conversation to agree a settlement with the employee which is confidential and “off the record”.
The employee can’t then use the discussions as evidence in an unfair dismissal claim, although you should be aware that they can be used in other types of tribunal claim such as discrimination.
It is worth noting that your protection will be lost if there is improper behaviour on your part. Such behaviour could include bullying, intimidation, placing undue pressure on the employee to accept or not giving them enough time to consider the offer.
‘Without prejudice’ conversations are different because they only apply when there is a pre-existing dispute that you are seeking to settle with an employee.
The aim is to encourage parties to resolve disputes and end employment without fear that what they say will be used as evidence against them or be seen as an admission of liability or wrongdoing.