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North West HR Group

Protected conversations – legal advice

During our North West HR Group, we had a short Q&A session. During this session Tom and Elizabeth discussed 4 frequently asked questions.

1. If there is found to be “improper behaviour” will the employer automatically lose an unfair dismissal claim?

The short answer is no. If there is improper behaviour found by a tribunal then the fact and content from the attempted protected discussion will become admissible as evidence and it will form part of the decision making process for a tribunal to whether or not the dismissal was fair in accordance with the normal section 98(4)  ERA 1996 ‘‘Is it reasonable in all circumstances of the case test.’ It doesn’t categorically or automatically make a dismissal unfair.

2. If an offer is made and 10 calendar days given for return of the executed settlement agreement, then further offers are made as part of negotiation, does this re-set the 10-calendar day obligation for return of the settlement agreement?

The 10-calendar days as set out in the ACAS Code is a guide only for what is deemed as a “reasonable” period for return of the settlement agreement signed so that there is not “undue pressure” being place on the employee. The reality is that it would come down to the tribunal to decide. In my view the original 10 day deadline would likely not be re-set by further offers of the 10 days. I am not aware of any case law specifically that backs that up, but I would be pretty confident at that position.

3. If an employee leaves under a voluntary redundancy scheme and enters into a settlement agreement, do they still count towards the number of people being made redundant for the purposes of collective consultation?

If you’re making 20 or more redundancies in a 90-day period then you need to collectively consult and also submit information to the government.  The length of consultation depends upon the numbers. Whether an employee is treated as redundant depends on the reason for the dismissal. If someone is exiting under a settlement agreement due to a voluntary redundancy then it will still be classed as a redundancy for the purpose of collective consultation. Therefore, you cannot use a settlement agreement as a way to reduce the numbers in order to avoid collective consultation.

4. If an employee with under two years’ service is working part-time following a successful flexible working request and we want to terminate their employment under a settlement agreement, can we use a protected discussion?

Employees with under two years’ service don’t have the right to claim unfair dismissal under ordinary circumstances. However, in this case, we need to be mindful that we have an employee who is working part-time, which could potentially be for example for childcare reasons and an employee who has requested flexible working. If you dismiss an employee because they requested flexible working, that is an automatic unfair dismissal and does not benefit from the protection of a protected discussion. If there is any argument that you are treating them in a discriminatory way by attempting to terminate their employment because of them working part time for childcare reasons, that is also not going to benefit from the protection afforded by a protected discussion. Where we have these circumstances, we would exercise a lot of caution.

If it is clear that the employee is under-performing, they have been under-performing since before they made the flexible working request and you have very clear evidence of that, the likelihood is that they are not going to be successful in an automatic unfair dismissal or discrimination claim and you might feel more comfortable about using a protected discussion. That said, if you use a protected discussion, and the employee enters into a settlement agreement then the settlement agreement still applies to waive the other claims as well. It can therefore be a risk that employees want to take if they are fairly satisfied that it will achieve the outcome they are looking for. It is however advisable to take legal advice under these or similar circumstances before having a protected discussion.

For more information, please contact our Employment & HR department  Tom.Evans@dtmlegal.com or Elizabeth.judson@dtmlegal.com

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