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Protected conversations

Friday 7th December 2018
Categories —
Protected conversations gingerbread man

What is a protected conversation?

A nice cup of coffee, the boss’s warm cosy office, it’s great to catch up and chew the fat. Not just manager and employee: colleagues. Equals. Two essential parts of a great team. He seems a little nervous. Probably not quite sure how I’ll react to the news of a promotion, or whether the pay rise he’s about to tell me about will be quite enough. Ha. Life is good. It’s…

Pardon me? A “…difficult…” what was that? “…there’s no easy way to” do what? There must be some sort of mistake…

The “off the record” chat

This sort of conversation goes on all over the world, every day of the week, hundreds of times. Usually, it takes place with a troublesome or surplus-to-requirements employee to gently encourage them to leave. A ‘difficult conversation’ is a great way of describing it, because they are difficult – for both parties. Many employers will have heard of having such conversations on an “off the record” or “without prejudice” basis. Usually an offer is made “off the record” or “without prejudice” with the intention that if the employee decides not to accept and brings a claim against the employer, the content of that conversation or offer cannot be referred to. So far so good….

Well no actually. In fact, there is no such thing as an “off the record” conversation. It is possible to have a binding agreement to keep something confidential, but only in very specific circumstances. An employer saying to an employee “This is off the record…” or “In strict confidence…” does not make it so. Especially not where the employee is sat dumb-struck, mouth opening and shutting like a goldfish, as their brain tries to process the unbelievable notion that they are not, in fact, utterly pivotal to the very existence of their employer’s business. To fill the awkward silence, the employer immediately launches into their soliloquy as to why it’s just not working. And thus there is no agreement to keep anything quiet or confidential at all.

Similarly, most conversations are not actually without prejudice. For them to be genuinely without prejudice in the legal sense there must be a pre-existing legal dispute of some kind. Although as an employer you may think there is the possibility of a dispute in the future, that is not enough.

Protected conversations – s.111A Employment Rights Act 1996

What then is the solution where you could enter into a long-winded disciplinary or performance management or redundancy process, but actually just want to cut to the chase? You know what the outcome will be, so you just want to get on with running the business. Perhaps you even have an inkling that the employee would welcome such an approach. How do you protect yourself and your business? How do you have a frank conversation without it being used against you in the future?

The answer may be a “protected conversation”, also known as pre-termination negotiation. It is a helpful mechanism set out in section 111A of the Employment Rights Act 1996. ACAS – the Advisory, Conciliation and Arbitration Service – have published their Code of Practice 4 on Settlement Agreements which gives full details of how it works. In essence, though, it means you can have that “off the record” conversation and the content is inadmissible in (some) future legal proceedings. Importantly, there is no requirement for a pre-existing dispute. Which is particularly useful if this will come as a complete surprise to your employee. And, you don’t have to use any magic words. Indeed, a conversation will often be a protected conversation even where the employer had never heard of the concept.

Are there any rules around having a protected conversation?

Yes, but not many. The main point to be aware of is that you will lose the protection if you engage in unreasonable or ‘improper’ conduct in relation to the conversation. Examples of improper conduct include:

  • Placing undue pressure on the employee to accept the offer. There are lots of examples of what undue pressure can be. Fairly obviously, don’t threaten them with violence (or indeed assault them!), bully or intimidate them. Less obviously, you can’t tell them that if the offer is not accepted they will be dismissed anyway. Presenting something as a foregone conclusion should be avoided. In some respects it is a matter of semantics though. “Take this deal otherwise I will sack you for gross misconduct” would be improper. However, you are entitled to bring the employee’s attention to processes which may need to be followed should agreement not be reached. These could include, for example, a disciplinary process, performance management or consultation on redundancy. This would be especially justified if one (or more) of these were relevant background to you holding the conversation in the first place;
  • Not giving a reasonable amount of time for the employee to consider the offer. The Code of Practice suggests that 10 days is a reasonable period. This is actually quite a long time and there has been some criticism of ACAS for suggesting such a lengthy period. A lessor period may in fact be ok, especially if the employee has a reasonable opportunity to think and do what they need to do in that time. Equally, though, just giving them a day or two to consider your offer almost certainly would not be enough. You can help yourself here by agreeing with the employee how much time they would like. You could also give them time off in order to think, discuss with their loved ones and/or seek advice;
  • Any form of discrimination, harassment or victimisation during the conversation is likely to be improper conduct. As indeed may be more general rudeness, swearing etc.

The other important caveat here is that the protection does NOT cover claims for automatically unfair dismissal (e.g. dismissal for whistleblowing or asserting a statutory right); discrimination, harassment or victimisation; or breach of contract or wrongful dismissal. So if there is a discrimination claim (or even a fairly spurious allegation of discrimination) then the conversation will not be protected and the content can be referred to for the purposes of such a claim.

What about more complex situations?

Despite the limitations, a protected conversation is a useful tool. If you can reasonably conclude that the only issue likely to arise relates to the fairness of any proposed dismissal in the ordinary sense, then a well-timed protected conversation can enable you to bypass lengthy, disruptive and time-consuming processes. The employee might actually welcome the conversation as well.

However, if there are any of the more ‘red flag’ features such as complex grievances; concerns around health and safety, whistleblowing or other employment rights; allegations of bullying or harassment; or the employee obviously has a protected characteristic which they may seek to wield in anger against you (their gender/pregnancy etc., race, disability, sexual orientation, religion or beliefs or their age) you are probably best advised not to go down this route. These are cases where a little investment in quality legal advice can pay huge dividends.

If you would like guidance on how best to approach an employee to achieve a settlement agreement, and whether you can safely have a protected conversation, then please don’t hesitate to contact us.

Protecting you from the protected conversation.

That’s the Paladin way.