Since 2013, employers have been able to have ‘off the record’ conversations with their employees regarding their employment status in the knowledge that such conversations are confidential.
DTM Legal guides you through the process of protected conversations and how to have them with your employees.
What is a protected conversation?
The Government originally proposed the idea of protected conversations so that, as David Cameron put it, “a boss and an employee could feel able to sit down together and have a frank conversation at either’s request.”
The idea was that frank conversations about workplace matters and straightforward settlement agreements could take place without the employer being at risk of being taken to a tribunal.
The exceptions & what do the conversations cover?
The law allows an employer and an employee to have a protected conversation in certain circumstances. If you are proposing to end an employee’s employment on agreed terms, the conversation can be kept confidential.
However, there are some exceptions.
Protected conversations will only be eligible to be withheld as evidence in a tribunal in ‘ordinary’ unfair dismissal cases. In claims where the dismissal is automatically unfair or in claims for unlawful discrimination, the conversation would be fully disclosable.
Certain protected conversations are not covered by section 111A of the Equal Rights Act (ERA) that relate to complaints of:
- Automatically unfair dismissal such as whistleblowing or union membership
- Harassment or victimisation
- Breach of contract or wrongful dismissal
- Physical assault, threats and other criminal behaviour
- Putting undue pressure on an employee (e.g. an employer saying before any form of disciplinary process has begun that if a settlement agreement is rejected then the employee will be dismissed)
The current law does not prevent a tribunal taking account of a conversation in which, in the tribunal’s view, something was said or done that was improper or was ‘connected with improper behaviour’.
Can an employee initiate a conversation themselves?
Although a protected conversation is usually initiated by the employer, an employee can also request one, provided that it is with a view to agreeing a settlement agreement.
During the discussion, employees could propose a settlement agreement themselves or ask their employer to make an offer.
What is the purpose of a settlement agreement?
Settlement agreements are legally binding contracts which can be used to end the employment relationship on agreed terms. The main purpose of such an agreement is to prevent employees from exercising their right to make a claim to court. Settlement agreements usually include some form of payment to the employee by the employer and may also include a reference.
What happens next?
You should give your employee a reasonable period of time to consider any proposed settlement agreement. 10 days is the recommended time period.
Protected conversations are a good tool for employers who want to proceed with a straightforward dismissal. In theory, these might include cases of persistent misconduct or redundancy but there is a difficulty of conducting frank discussions in cases like these.