Protected Conversation: Want to let someone go?

A protected conversation could be the right option.  But read this first…

If you’re looking into “protected conversation”, you’re probably thinking about letting someone go.  

And depending on the circumstances, a protected conversation could well be a useful method of achieving that goal.  But in order to get it right, and avoid any problems further down the line, we’ve put together a guide to help you decide whether a protected conversation is for you.  So here goes:

What is a protected conversation?

Essentially, it’s an “off-the-record” conversation with an employee, where you’re able to make a proposal regarding the termination of their employment.

What is the point of a protected conversation? 

The goal of a protected conversation is usually to make an offer to an employee, and negotiate on the termination of their contract, arriving at an agreement between both parties, which is then recorded in a settlement agreement.

The reason why the word “protected” is used is because the pre-termination conversations cannot be used in a future unfair dismissal employment tribunal claim – those conversations are confidential and therefore “protected”, as a result of section 111A of the Employment Rights Act 1996.

When would you use a protected conversation?

Protected conversations are designed to terminate an employee’s employment when there hasn’t been a previous issue or problem with their behaviour or performance.

Before 29^th July 2013, ‘without prejudice’ conversations were more common, but the issue with those conversations was that if no agreement was reached, there were certain scenarios where they could claim that the conversation was a breach of the trust and confidence, allowing them to resign and claim constructive unfair dismissal.

How can you ensure that a protected conversation is protected?

To ensure that your protected conversation is actually “protected” and inadmissible in an employment tribunal, it’s critical to ensure that there is no “improper behaviour” during the negotiation period.

This is by no-means an exhaustive list, but the ACAS Code of Practice gives you a run-down of the kinds of things that constitute improper conduct:

•  all forms of harassment, bullying and intimidation, including through the use of offensive words or aggressive behaviour;
•  physical assault or the threat of physical assault and other criminal behaviour;
•  all forms of victimisation;
•  discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership; and
•  putting undue pressure on a party (eg an employer saying before any form of disciplinary process has begun that if a settlement proposal is rejected then the employee will be dismissed).

If any of the above are alleged, your conversation is not protected, and you could leave yourself open to an employment tribunal claim.

Is everything in a protected conversation fully protected?

No.  Although section 1111A of the ERA is fairly all-encompassing, there are certain things that it doesn’t cover, including:

•  automatically unfair dismissal, such as, whistleblowing, union membership, health and safety or asserting a statutory right;
•  discrimination, harassment, victimisation or other treatment prohibited by the Equality Act 2010; and
•  breach of contract or wrongful dismissal.

Where does a settlement agreement fit into a protected conversation?

During your protected conversation, the goal will be to arrive at a mutually agreed conclusion to their employment.  

Whatever you agree as the conclusion to their employment needs to be recorded in a settlement agreement – this is a legally binding contract, which is used to prevent employees from then subsequently making a tribunal or court claim.

In most cases, a settlement agreement will include some sort of payment, and there are often other elements including e.g. a reference.

The ACAS Code suggests giving your employee plenty of time to consider the terms of your settlement agreement – their guidance is a minimum of 10 calendar days.  However, there is no legal time period, and both parties can agree otherwise.

One thing to bear in mind is that settlement agreements are not mandatory – your employee has no obligation to enter into one with you, or to accept the first terms you propose.

However, when your settlement agreement is agreed and signed, this should give you confidence that there will be no repercussions further down the track.

Protected conversations – a warning

One final warning – protected conversations MUST be done properly.  Failure to tick every box can see your protected conversation not be protected at all, so if you are considering a protected conversation, we’d advise you to talk to an employment law expert.  Give us a call on 01980 622167, or email us at [email protected] and we’ll have a free, confidential chat about your situation.