As an Employer you must be so careful about what you say. This is because conversations, emails etc can be used in an employment tribunal.
This can make it hard to have difficult conversations with staff.
An off the record chat means that in certain circumstances an employer can have an open conversation with an employee. This is a good thing to be able to do.
For example if you were an employer dealing with employee poor performance. Rather than having to go down the route of a capability process you could have an off the record chat with the employee and explore whether they would prefer to leave the organisation.
Having this type of conversation would be inconsistent with a fair capability process as the employer should not make their mind up at the start of a process.
So, the law allows you to have an off the record chat. However, you must be extremely careful.
It is not enough simply to pull an employee to one side and say that you want an off the record chat. The law says that there needs to be an “existing dispute” what this means is an issue which requires settling. So essentially you cannot do it out of the blue.
So, in the example of a capability situation you would want to ensure that the process has started.
You should also use the words “without prejudice” but can then go on to explain that this means “off the record”.
There is another way of having an off the record chat which doesn’t require an existing dispute. This is commonly called a “Section 111A” conversations. You would need to say that you would like to have a without prejudice conversation under Section 111A. This approach can be quite dangerous as if an employee can show that there is any “improper” conduct on behalf of the employer that the off the record protection goes away.
