‘Protected conversations’ are relatively new in UK law, introduced back in 2013.
A ‘protected conversation’ allows an employer to have conversation with an employee with a view to terminating employment under a settlement agreement, without the employee being able to rely on the details of the conversation as evidence in an unfair dismissal claim.
This is different to the previous position in that such protection only applied where a formal dispute had already arisen; such as a prior performance improvement plan, or disciplinary proceedings.
Importantly the provision is limited to standard unfair dismissal claims only; it does not apply, for example, to discrimination cases. No protection will be afforded where the reason for the proposed termination is one of the deemed automatically unfair reasons and discriminatory conduct will not be protected under the new rules.
Therefore, if discrimination is present, evidence of the previous protected conversation can be used in future litigation. Simple enough really.
So, how do these differ from ‘without prejudice’ conversations?
Previously, conversations held with an employee, for example one who is under-performing about an agreed exit would have been open to allegations of breaching trust and confidence - opening the employer up to allegations of constructive dismissal - or pre-judgment of future disciplinary action.
Whilst these conversations could be covered by the ‘without prejudice’ rules (meaning the conversation would be inadmissible in future litigation) this would be subject to their being a pre-existing dispute between the parties.
The scenario where this causes difficulty in practice is when an employer has valid concerns regarding an employee’s performance but has not formally raised them (and that there is no live dispute in play). In this situation, this would not trigger the ‘without prejudice’ protection.
So, when an employer then decides to dismiss the employee, the employee will be in a position to raise an unfair dismissal claim stating that the dismissal was predetermined.
For conversations to be ‘protected’ and to retain their confidentiality and inadmissibility in an Employment Tribunal there must not be any ‘improper behaviour’ in the negotiating process.
What constitutes improper behaviour is for an Employment Tribunal to decide however ‘improper behaviour’ will include behaviour that would be regarded as ‘unambiguous impropriety’ under the without prejudice rule.
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 (e.g. an employer saying before any form of disciplinary process has begun that if a settlement proposal is rejected then the employee will be dismissed).
Where there is improper behavior by an employer, anything said or done in pre-termination negotiations will normally be admissible as evidence.
Where the protection is lost…
The conversation still has to be entered into with a view to negotiating a settlement. The employee can’t simply be told to resign or be dismissed, or for that matter ‘enter into a settlement agreement or be dismissed.’ Such behaviour is improper and the conversation will lose its protection and may be relied upon to bring an unfair dismissal claim.
In addition, if the employee feels that they are being subject to unwarranted criticism as part of a ‘protected conversation’ they can still bring a grievance, which the employer will have to address or risk a constructive dismissal claim. If the grievance isn’t upheld and the employee then resigns and claims constructive unfair dismissal it is far from clear whether the tribunal will be prohibited from considering the background to why the grievance was brought in the first place.
What employers (or their representatives) should never do…
Fail to give an employee a reasonable period of time to consider an offer. A minimum of ten calendar days should be allowed to consider the proposed formal written terms of a settlement agreement, unless the parties agree otherwise. It could be considered undue pressure for an employer to reduce the amount of the offer progressively while the employee is considering it.
What employers (or their representatives) should do…
Contact their existing or engage an appropriate solicitor for further advice. These conversations – and outcomes – require legal support. Suitably experienced HR personnel are well positioned to handle the meetings but it is important to remember legislation and the rules surrounding these situations are fluid.