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Protected Conversations- Are your “off the record” chats “protected”?

What is a ‘Protected Conversation’? since July 2013, employers have been able to have “off the record” conversations with their employees regarding the termination of their employees’ employment in the knowledge that such conversations are in certain circumstances “protected”.

What is the purpose?
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.

The relevant legislation surrounding this is section 111A of the Employment Rights Act 1996.

What situations does a protected conversation cover?
In a situation where an employer seeks to terminate an employee’s employment, where, there has been no previous dispute or issue with that employee’s conduct, capability or the viability of their role a protected conversation could be the solution.

For conversations to be protected and in 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 (Code) 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.

Exceptions to a Protected Conversation?
Certain Protected Conversations are not covered by section 111A of the Employment Rights Act, these can include complaints relating to;
• automatically unfair dismissal, such as, whistleblowing, union membership or a health and safety issue,
• discrimination,
• harassment or victimisation, and
• breach of contract or wrongful dismissal.

In such situations, the without prejudice rule may still apply if there was a live dispute between employer and employee.

What is a ‘without prejudice’ conversation?
Where a genuine dispute has arisen, the “without prejudice” principle is often used and means statements made in a document marked “without prejudice” or made verbally on a “without prejudice” basis, in an attempt to settle the dispute will generally not be admissible in court as evidence against the person making the statement.

Before the introduction of Protected Conversations legislation in July 2013, employers who had maybe engaged in a ‘without prejudice’ conversation with an employee, with a view to terminating employment, but where no prior dispute had arisen, were at risk, if the employee did not agree to the termination of their employment and then chose to pursue a claim for constructive dismissal, as the conversation arguably amounted to a breach of the implied term of trust and confidence.

Alternatively, if the employer was to dismiss an employee after a “without prejudice” conversation and after the employer subsequently followed a dismissal process, the employee could bring a claim for unfair dismissal on the basis that the dismissal was predetermined, with the employee being likely to rely upon the ‘without prejudice’ pre-termination conversation which took place as there was not a dispute between the parties at that point.

Overall position
Protected Conversations are theoretically a useful tool for businesses, however, there are also possible pitfalls for businesses who are considering entering in to such discussions and expert legal advice should always be sought before commencing such conversations. Our Employment Law team is experienced with advising in respect of protected conversations and would be happy to discuss this with you. Please do not hesitate to contact us on 0161 478 3800 or on hello@peachlaw.co.uk

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

Protected Conversations- Are your “off the record” chats “protected”?

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