If there is a dispute with the employee, the ‘without prejudice’ rule may apply to communications genuinely aimed at resolving the dispute through settlement. Such conversations cannot be shared with a tribunal if the negotiations fall through. This would apply to all types of employment claims, but does not apply in exceptional circumstances such as where the communications involve fraud or blackmail. If there is no dispute with the employee, and provided certain conditions are met, an employer can have what are known as ‘protected conversations’ without the risk of the conversation coming back to haunt them. We can talk you through the timing and what you need to cover to make sure conversations are ‘off the record’. A word of warning; this protection only applies to unfair dismissal claims and discussions before the employee has left. If the employee has other potential claims, such as for discrimination, the conversation could form evidence in a tribunal. This creates an element of uncertainty as the extent of potential claims may not be known. The protection also does not apply if the discussions involve ‘improper behaviour’. The Acas Code of practice on settlement agreements gives examples of improper behaviour.