“Off the record?”
Jackie Denham sets out a guide on how to approach protected conversations.
A ‘protected conversation’, under section 111A of the Employment Rights Act 1996, can be used as a mechanism for having discussions with an employee about the termination of their employment (typically under the terms of a settlement agreement) without evidence of those discussions being admissible in a court or tribunal in any claim for unfair dismissal. These “off the record” discussions are useful where there is not already a dispute between the parties. However they must be used with caution because they only provide protection where the only potential claim is unfair dismissal. For example, if there is any risk that the individual could claim discrimination or has raised a whistleblowing allegation, any conversation about termination of employment would not be protected.
The rationale is that conversations facilitated in this manner allow the parties to speak freely, knowing their admissions will not be disclosed and may not be used against them should the discussions fail. The result being that there is more likelihood of reaching a settlement.
The ACAS code suggests that employees should be accompanied by a colleague or trade union official to a “protected conversation”. However most employers find that highlighting this to individuals prior to the meeting sets the wrong tone for that meeting. A sensible approach would be to tell the employee they can be accompanied to any future meetings relating to the discussions (if there are any and if they wish).
It is important that at the start of any such meeting the employee clearly understands the employer’s intention is for the conversation to be protected and agrees to talk on that basis. It should also be made clear to the employee throughout the discussion that entering into the protected discussion and terminating their employment by reason of a settlement agreement is entirely optional.
The employee should be informed of what may happen if they decide they are not interested in entering into settlement discussions or if the parties are unable to reach an agreement. However it is vital that this information is not given in a threatening way. This is because, in order for the discussions to remain protected, the employer must not engage in improper behaviour during the negotiation process. Any form of harassment, bullying or intimidation on the part of the employer or otherwise putting undue pressure on the employee (including suggesting that if the settlement is rejected the employee will be dismissed) is likely to mean the conversations would be admissible as evidence in any claim.
Protected conversations can be a very useful mechanism for an employer in managing amicable employee exits, but they need to be dealt with carefully and sensitively to ensure that they remain “off the record”. We recommend employers obtain advice on each scenario to mitigate any risk that such conversations can be used against the company in the future.