Protected Conversations

‘Protected conversations’ are relatively new, introduced in July 2013.

A ‘protected conversation’ allows an employer to have a conversation with an employee with a view to terminating his or her 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.

The provision is limited to standard unfair dismissal claims only and 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, for example relating to trade union activities, pregnancy, or assertion of statutory rights. Furthermore, any discriminatory conduct will not be protected under these rules.

Therefore, if discrimination is present, evidence of the previous protected conversation can and most likely will be used in future litigation.

How it differs from a ‘without prejudice conversation’

Previously conversations held with an employee who for example is underperforming about an agreed exit would have been open to allegations of breaching trust and confidence which in turn open the employer up to allegations of constructive dismissal - or the dangerous suggestion that there was pre-judgment of future disciplinary action.

Whilst these conversations could be covered by the ‘without prejudice’ rules (meaning that the conversation would be inadmissible in future litigation) it 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 (i.e., there is no live or on-going 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.

Criteria for a ‘protected conversation’

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 essentially for an Employment Tribunal to decide based on the facts and circumstances of each case. However, ‘improper behaviour’ will include behaviour that would be regarded as ‘unambiguous impropriety’ under the without prejudice rule (e.g., fraud, perjury, or blackmail). The Acas Code of Practice – Settlement Agreements (Code) provides a non-exhaustive list of improper conduct, which includes:

1. Any and all forms of harassment, bullying and intimidation, including through the use of offensive words or aggressive behaviour.

2. Physical assault or the threat of physical assault and other criminal behaviour.

3. Any and all forms of victimisation.

4. Discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership.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).

5. Where there is improper behaviour by an employer, anything said or done in pre-termination negotiations will normally be admissible as evidence.

Protection can be 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 in every way ‘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 unfair dismissal claim.

If the grievance isn’t upheld and the employee subsequently resigns and makes a claim for constructive unfair dismissal it is not clear whether the tribunal will be prohibited from considering the background to why the grievance was brought in the first place.