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When is an off the record conversation not off the record? – risks and tips for employers
June 15, 2026
By Owen John
Off the record conversations can play an important part in resolving employment disputes with staff. However, if not used properly, they can result in costly Tribunal claims and the admission into evidence of information that you would otherwise prefer to remain off the record.
Our employment law expert Owen discusses when off the record conversations are genuinely protected, the risks employers need to be aware of, and how getting it wrong can have significant consequences in any subsequent Employment Tribunal claim.
Legally, there are two ways for an employer to have an off the record conversation with an employee:
OR
Claims that relate to automatically unfair dismissal such as whistleblowing, union membership or asserting a statutory right are not covered by the confidentially provisions afforded by s.111A. Importantly, claims made on the grounds of discrimination, harassment, victimisation or any other discriminatory behaviour prohibited by the Equality Act 2010, or claims relating to breach of contract or wrongful dismissal are also not afforded the protection.
Additionally, the protection afforded by S.111A is subject to there being no ‘improper behaviour’ by the employer. What constitutes improper behaviour is up to a Tribunal, but usually includes:
If there is an existing dispute between employer and employee, having a without prejudice conversation is the broadest, most all-encompassing way of ensuring that everything said during that conversation remains genuinely off the record.
However, if there is no existing dispute between employer and employee, an employer will need to rely on having a protected conversation but must bear in mind the limitations outlined above (particularly those relating to potential discrimination claims).
This topic will be explored in greater detail during Webinar 4: “Protected conversations – when they work and when they backfire”, part of our free webinar series, “What keeps HR awake at night?”.
Taking place at 11am on 24 June 2026, this 20-minute, practical session will explain when protected conversations can help reduce legal risk, when they can create new problems, and the common mistakes employers should avoid. Like all sessions in the series, the focus is on real-world employment law issues and practical guidance rather than lengthy discussions of legislation.
For more detailed, practical insight into this and other common employment law risks, join our webinar series running every Wednesday from until 8 July 2026.
If you would like more information about any of the issues discussed in this article, please get in touch. You can contact us via our contact form, email hello@darwingray.com, or call 02920 829 100 to discuss how we can support you or your business.
To speak to one of our experts today, please contact us on 02920 829 100 or by using our Contact Us form for a free initial chat to see how we can help.
