Protected Conversations

Protected ConversationsLegal jargon can be complex and tricky to understand and so the aim of this article is to break down the significance of protected conversations at work and give you some initial guidance.

Your employer may have invited you to a protected conversation and you are unsure how to proceed. In this article we will explain what a protected conversation is and if you should attend.

What Are Protected Conversations

In July 2013, a new section (111A) was added to the Employment Rights Act 1996, to cover the “Confidentiality of negotiations before termination of employment”

The legislation introduced the concept of “pre-termination negotiations,” which is more commonly known as Protected Conversations.

The purpose of the legislation is to enable employees and employers to have “frank conversations” about the employment being terminated. The conversation can be requested by either employers or employees, but in practice they are usually only initiated by the employer.

A Protected Conversation is designed to make it easier to start conversations about terminating an employment relationship, because the parties can have an “off the record” discussion.

Why Are Protected Conversations At Work Used?

Protected conversations are used to enable employers and employees to discuss parting ways.

It is protected, as the name suggests, given that you and your employer can engage in these discussions, whether verbally or in writing, without it being used in employment tribunal proceedings. This means that any evidence of the protected conversation is “inadmissible” (it cannot be submitted into evidence).

When Are They Used?

Unlike with “without prejudice” communications, there does not have to be an existing dispute between the parties for there to be a protected conversation.

Employers use protected conversations to start the process of employees leaving the business.

They are used with employees with more than 2-years service, because these individuals have unfair dismissal rights, which means the employer is likely to need to go through a formal process before they can be dismissed fairly. A protected conversation may be used as an alternative to a formal process starting (such as performance management, a disciplinary or redundancy consultation) and employers will often discuss you leaving the business sooner, thus avoiding the formal process having to take place.

As long as there are no existing allegations of whistleblowing, discrimination and/or breach of contract then an employer can decide to engage in a protected conversation. There is no formal process or steps that need to be taken for the conversation to be “protected.” However, most employers will write to you and invite you to a “protected conversation” in advance and where this may be deemed good practice, it is not a requirement.

There is no formal right to be accompanied (for example by a Trade Union representative or colleague) at a protected conversation.

How Should Your Employer Behave?

If anything said or done was deemed to be “improper” or connected with “improper behaviour” then the conversation will no longer be protected, meaning it can then be used as evidence.

Some examples of improper behaviour might be threats or excessive pressure by your employer.

What Can Be Discussed?

The purpose of a protected conversation is to have a discussion about ending the employment relationship, without it being referred to in any subsequent claim for unfair dismissal.

However, there are some limitations on what can be discussed, and any of the following (if discussed) is unlikely to be protected:

  • The protection applies to unfair dismissal claims only, so anything said that may amount to other claims such as whistleblowing, discrimination, harassment, victimisation, breach of contract, asserting a statutory right, automatic or wrongful dismissal, will not be protected.
  • Being dismissed.
  • Any improper behaviour.

Can employees initiate protected conversations?

Yes, employees can initiate protected conversations but in practice, this happens rarely.

It is unlikely to be a sound approach for the employee to commence a protected conversation and there are better approaches if you are seeking to negotiate an exit.

What should you do if you are asked to engage in a protected conversation?

There is no harm in agreeing to have a protected conversation. Go, take notes and clarify any points that have been made.
If your employer does offer you a settlement, take time to reflect and seek advice, do not agree to it in the meeting. You can ask for clarifications, but be careful not to agree to anything.
You can also ask what will happen if an agreement is not reached (your employer may say that you will be dismissed, giving you an argument that the conversation is now not protected).
After having the protected conversation and/or receiving the offer, you should take professional advice as soon as possible. You will need to know if the offer is reasonable or if you will be entitled to more. Having an offer to build on (done correctly) is usually a good position to negotiate from.

Next Steps

Being invited to a protected conversation at work can be daunting and scary. However, if you attend and hear what the employer has to say/offer, you will be in an ideal position to take professional advice to ensure you maximise your chances of a favourable outcome.

It is best to take legal advice as soon as you can if you are seeking to negotiate with your employer. You will need legal guidance regardless, especially when a settlement is proposed.

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