A Guide to Protected Conversations

What is a protected conversation?

A protected conversation is an off-the-record conversation between an employer and an employee about the potential ending of a person’s employment on agreed terms.  The concept was introduced as a means for employers to facilitate a friendly and non-confrontational discussion with a member of staff about the option of an exit where it was obvious (or becoming obvious) that their role wasn’t working out, without the fear of legal proceedings following shortly thereafter. It is called a protected conversation because the content of the conversation is protected from being disclosed in future unfair dismissal proceedings in an Employment Tribunal and so is completely confidential. While not without its limitations (see below), this type of conversation can be deployed as a useful alternative strategy in a range of circumstances e.g. underperformance, a breakdown in relationships, in advance of a disciplinary or potential restructure/redundancy exercise.

How to have a protected conversation

A protected conversation can take place either over the phone, in person or via written communication. It may be the case that the employer refers to the relevant legal section and piece of legislation, namely section 111A Employment Rights Act 1996, but does not have to; a conversation can still be protected even without this section being referenced, but it helps if it is.

How should your employer behave during a protected conversation?

The protected afforded to these types of conversation is not absolute; an employer must behave properly during a protected conversation, and at all times throughout any subsequent negotiation otherwise the protection and confidentiality will be lost.  Examples of ‘improper’ behaviour include:

• 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 (e.g. your employer saying before any form of disciplinary process has begun that if a settlement proposal is rejected then you will be dismissed).

Where a conversation is to take place over the phone or in person, we always recommend that the person instigating the conversation has a basic script that they use as a guide, and that the individual’s agreement in sought (and obtained) prior to proceeding with the conversation.

Can an employee request a protected conversation?

Yes, an employee can instigate a protected conversation with their employer for any reason and at any time in their employment. Tactically, it is a good idea to have already made your employer aware of any concerns or issues beforehand, as this will increase the likelihood of them engaging meaningfully in the discussion and subsequent negotiation.

What should you do if your employer asks to have a protected conversation?

As an employee, if your line manager or member of the HR team asks to have a protected conversation with you, there really is no downside to agreeing to have the conversation and listening to what they have to say. Don’t panic – it isn’t necessarily bad news. If the timing isn’t appropriate, for example you are on holiday or are on sick leave, you should say so and suggest an alternative time that would be convenient.

An employee should not feel or be put under undue pressure to accept any offers made to terminate their employment. It would be normal for an employee to be given between 5-10 days and potentially a period of paid time off to consider their position. Negotiation is entirely normal; an employer’s first offer is not very often their only or best offer.

What happens next after the protected conversation?

Where the negotiation is successful, the terms of the employee’s exit will be documented in a settlement agreement.  To be legally binding, the employee will need to be given separate independent legal advice on their terms of that agreement.

What are the risks of having a protected conversation?

For employers: the principal risk is that the protection and inadmissibility of this type of conversation or communication only extends to unfair dismissal cases.  If the employee goes on to submit an Employment Tribunal claim which includes complaints of discrimination and/or whistleblowing for example, the conversation and any offer(s) made to terminate that person’s employment will be admissible in evidence and may, depending on the particular facts of the case, be quite damaging to the employer’s defence.  Where there is the genuine potential for the employee to pursue a broader range of complaints than just a simple claim for unfair dismissal, an employer should enter into a without prejudice conversation rather than a protected conversation, as the protection afforded to those conversations is broader if properly constructed. These limitations are the reason why it is important that employers choose the right scenarios and take appropriate legal advice prior to engaging in protected conversations.

For employees: the principal risk in instigating a protected conversation is that the employer does not engage and the employee has shown their hand, such that they’re left with little option but to resign or stick it out and stay in a role / with an employer that their not happy with.

We routinely advise both employers and employees on the terms of settlement agreements and have successfully acted on exit packages of in excess of £7million this year alone. If you would like to find out more about our significant expertise in this area please visit our website – here  – or contact one of the team info@torquelaw.co.uk