How to Start a Difficult Conversation With Your Employer — and What 'Without Prejudice' Really Means

Things have gone wrong at work. Perhaps you have been treated badly, pushed out, made redundant unfairly, or simply reached a point where you and your employer both know the relationship is not going to recover. You want to explore a way out — but you are not sure how to raise it, or what you can say without it being used against you.

This guide explains two routes that the law provides for having that honest, frank conversation without fear that your words will end up in an Employment Tribunal. We will explain what each one means, how they differ, and how to use them — in plain, straightforward language.

1. Why These Conversations Exist

Employment disputes can be messy and stressful for everyone involved. Sometimes, both sides know deep down that the best outcome is a clean break — perhaps with a financial settlement. But nobody wants to be the first to say it, because they worry that raising it will be seen as an admission of weakness, or that their words will be thrown back at them in court.

The law recognised this problem and created two separate frameworks that allow both sides to speak openly and explore a settlement — without those conversations being used as evidence later. Think of it as a private, off-the-record discussion where both parties can be honest without consequences.

2. Without Prejudice — The Classic Route

What it means in plain language

'Without prejudice' simply means: "I am saying this to try to resolve our dispute, and if we do not reach an agreement, nothing I say here can be used against me in court."

If you write a letter or have a conversation marked 'without prejudice', the other side cannot walk into an Employment Tribunal and tell the judge what was said. The whole point is to create a safe space where both sides can speak honestly and try to reach a deal.

When does it apply?

Without prejudice only works when there is already a genuine dispute between you and your employer. It does not matter how formal or informal that dispute is — it could be a grievance you have raised, a disciplinary process you are going through, or even a serious falling-out that both sides recognise as a real conflict. The key is that the dispute already exists.

How to use it

Either side — you or your employer — can suggest a without prejudice conversation. You do not need a solicitor in the room, although it can help. The most common way to start is simply to write a letter or send an email with the words 'Without Prejudice' clearly at the top, or to say at the beginning of a meeting: "I would like this conversation to be without prejudice."

Practical example: You have raised a grievance about being passed over for promotion because of your age. Your employer has not upheld it. You believe you have a discrimination claim. You could write a 'Without Prejudice' letter proposing a financial settlement in exchange for leaving and not bringing an Employment Tribunal claim. If they reject it, that letter cannot be used against you.

What it protects — and what it does not

Without prejudice protects what is said or written during genuine settlement discussions. However, it is not a magic shield. There are situations where the protection falls away:

• If one party behaves improperly — for example, making threats or using undue pressure — the other side can ask the tribunal to hear evidence of that behaviour.

• If there is a dispute about whether an agreement was actually reached, the communications can be shown to resolve that specific question.

• If the communication was not genuinely connected to settling a dispute — for example, if you simply labelled something 'without prejudice' to try to hide it — the label will not protect it.

3. Protected Conversations — The Employer's Tool

What it means in plain language

A protected conversation is a newer type of off-the-record discussion, introduced by the Government in 2013. It works in a similar way to without prejudice — what is said cannot be used in an Employment Tribunal — but it has some important differences.

The biggest difference is this: a protected conversation can happen even before there is any dispute at all. Your employer can call you into a meeting, tell you they want to have a protected conversation, and then offer you a financial package to leave — even if everything has been perfectly fine up to that point.

Who can use it?

In practice, protected conversations are almost always started by the employer, not the employee. The law was designed specifically to allow employers to have a frank conversation about a potential exit without worrying that the employee will run to a tribunal and say: "My employer told me they wanted to get rid of me — that proves they had it in for me."

Practical example: Your employer calls you in for a meeting. They say: "I would like this to be a protected conversation. We feel that things are not working out and we would like to offer you six months' pay to leave under a settlement agreement." You do not have to accept. But if you do not, your employer cannot use the fact that they made the offer as evidence that they treated you unfairly.

What it protects — and what it does not

Like without prejudice, the protection is not unlimited. A protected conversation loses its protection if there is improper behaviour. ACAS guidance gives examples of what counts as improper:

• Putting the employee under undue pressure to accept — for example, giving them an unreasonably short deadline or threatening them.

• Saying anything that is discriminatory or offensive.

• Misleading the employee about their legal rights or the strength of any potential claim.

There is also one very important limitation: a protected conversation only protects against ordinary unfair dismissal claims. If you have a discrimination claim, a whistleblowing claim, or certain other types of claim, the protected conversation rules do not apply — and what was said could still be used as evidence.

4. The Key Differences at a Glance

5. What Usually Happens in These Conversations

Whether the conversation is without prejudice or a protected conversation, the goal is usually the same: to explore whether both sides can agree on terms for the employee to leave, usually under a settlement agreement.

Here is what the typical process looks like:

Step 1 — The conversation is opened. One side (usually the employer) proposes having an off-the-record discussion and states that it is either 'without prejudice' or a 'protected conversation'. You are under no obligation to engage, but it is usually worth listening.

Step 2 — An offer is made. The employer will usually put forward a financial offer — a number of weeks' or months' pay — in exchange for you agreeing to leave and not bringing any tribunal claims.

Step 3 — You take time to consider. You are entitled to a reasonable period to think it over. ACAS recommends at least 10 days to consider a settlement agreement. Do not feel pressured to agree on the spot.

Step 4 — You get independent legal advice. If a settlement agreement is offered, you are legally required to get advice from a qualified solicitor before signing. Without that advice, the agreement is not valid. Importantly, your employer will usually pay a contribution towards those legal fees — so this should not cost you anything.

Step 5 — Negotiation. The initial offer is rarely the final one. You or your solicitor can negotiate the amount, the wording of a reference, confidentiality terms, and other details. Many employees successfully negotiate a higher figure than first offered.

Step 6 — Agreement is signed. Once both sides are happy, the settlement agreement is signed, you receive your payment, and the matter is resolved.

6. If Your Employer Raises It — What Should You Do?

Being called into a meeting and told your employer wants a 'protected conversation' can come as a shock. Here is how to handle it:

• Do not panic. Being offered a settlement does not mean you have done anything wrong. It means your employer wants a clean exit.

• You are not obliged to respond immediately. Ask for the offer in writing and tell them you need time to take advice.

• Do not sign anything on the spot. No matter what pressure you feel, never sign a settlement agreement without taking legal advice first.

• Make a note of everything that is said. If you feel pressured or threatened, write it down as soon as you leave the room — including times, dates, and exact words used.

• Get specialist employment law advice. A solicitor can tell you whether the offer is fair, whether you have stronger claims that the protected conversation rules do not cover, and whether you should negotiate for more.

7. If You Want to Raise It — How to Start the Conversation

Sometimes it is the employee who wants to explore a settlement — perhaps because the working relationship has broken down badly and you simply want to move on with a fair financial package. Here is how to approach it:

• Put it in writing. Send a letter or email to your employer — usually HR or a senior manager — clearly marked 'Without Prejudice' at the top.

• Keep it factual and professional. State that you believe the employment relationship has broken down, that you would like to explore whether a mutually agreed exit is possible, and that you are open to discussing terms.

• Do not make threats. You can say you are considering your legal position, but avoid aggressive language — it can undermine the without prejudice protection.

• Propose a figure if you are comfortable doing so, or simply invite them to respond with their position.

• Get legal advice before you send it. A solicitor can check your letter and advise on your leverage — for example, if you have a strong discrimination or unfair dismissal claim, that will affect how much you can realistically negotiate.

8. Common Mistakes to Avoid

• Signing a settlement agreement without legal advice. The agreement is legally invalid without independent advice — but rushing in can still cause you problems.

• Accepting the first offer. Employers rarely open with their best figure. Most initial offers are negotiable, especially if you have a strong legal claim.

• Missing your tribunal deadlines. Even while settlement discussions are ongoing, your tribunal time limits keep running. Most claims must be started within 3 months. Do not let the conversation drag on until your deadline has passed.

• Using the wrong label. Not every conversation labelled 'without prejudice' is actually protected. The label must accurately reflect what is happening — a genuine attempt to settle a real dispute.

• Going it alone. These conversations involve legal concepts and financial negotiation. Getting specialist advice almost always results in a better outcome.

Important — These conversations do not waive your rights. Agreeing to have a without prejudice or protected conversation does not mean you have agreed to leave or accepted any offer. You can walk away from the discussions at any time and pursue your tribunal claim as if the conversation never happened. The only thing that binds you is a signed settlement agreement.

This article is for general information only and does not constitute legal advice. Employment law is fact-specific — always seek advice tailored to your own circumstances.

Speak to an employment law specialist

If you want to open a conversation with your employer the right way, we can guide you. Book a 30-Minute Advice Session — £99 for direct telephone advice and a written summary, or request a free case review first.

Related guides: What is a Protected Conversation? and How to Negotiate a Settlement Agreement.