The law allows an employer and an employee to have an ‘off-the-record’ conversation in certain circumstances. This is not a straight forward area of the law and we would always advise that advice is sought. If the conversation is truly protected the issues discussed are not admissible as evidence in an Employment Tribunal Hearing.
Protected conversations are a possible way to negotiate an exit strategy for the agreed termination of an employee’s employment. If agreement is reached the terms of the agreement will generally be recorded in a settlement agreement, and the conversations that were had as part of the negotiations leading up to the termination and settlement are protected, and cannot be used in any subsequent Employment Tribunal claim, should one be pursued for a claim of unfair dismissal.
For conversations to be protected and order to be confidential and inadmissible as evidence before an Employment Tribunal, there must not be any “improper behaviour” during the negotiating process.
Each case will vary in terms of its facts and ultimately it would be for a Tribunal to consider this further. Improper behaviour does not have a clear definition, however the Acas Code of Practice – Settlement Agreements provides a non-exhaustive list of improper conduct, which includes:
- 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 it is found that there has been improper behaviour by an employer, it is likely that anything that is said in pre-termination negotiations will normally be admissible as evidence.
There are also exceptions to the conversation being protected. Certain Protected Conversations are not covered the legislation, these can include complaints relating to;
- automatically unfair dismissal, such as, whistleblowing, union membership or a health and safety issue,
- harassment or victimisation, and
- breach of contract or wrongful dismissal.
It is very easy to fall foul of this legislation in which case your conversation could be admissible as evidence in the Employment Tribunal. Take advice before having the conversation.