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25 November 2019

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What is a Protected Conversation?

Posted by: Stevi Hoyle

A protected conversation is a means by which an employer can initiate pre-termination negotiations with an employee, where the usual ‘without prejudice’ protection does not apply.

Protected conversations differ from a ‘without prejudice’ conversation in that there is no requirement for there to be an existing legal dispute which is likely to lead to litigation before negotiations can be initiated. This offers employers the opportunity to explore a potential exit in a wider set of circumstances.

The statutory regime governing protected conversations provides that such conversations are private and any evidence of communications will not be admissible before an Employment Tribunal in ordinary unfair dismissal proceedings. This means that employers and employees can have an “off the record” discussion to explore the possibility of terminating employment on mutually agreeable terms.

When should I consider a protected conversation?

Protected conversations tend to be most appropriate in situations where it is likely that amicable exit terms will be agreed quickly and the individual concerned is likely to take a pragmatic approach.

Discrimination and Whistleblowing claims

Where a protected conversation is tainted with any potential element of discrimination, evidence of negotiations will not be protected. For example an employer attempting to have a protected conversation with a woman returning from maternity leave is likely to give rise to a claim of maternity discrimination, the contents of which would have to be made public in any Employment Tribunal proceedings.

Similarly, where there is an allegation of whistleblowing, a protected conversation will lose its protected status and the contents of the discussion would have to be disclosed in any future litigation.

Employers must behave “properly”

Protected conversations are subject to the concept of “improper behaviour” which essentially means that both parties, particularly employers, must act in a proper fashion in order for discussions to remain off the record.

The ACAS Code provides a non-exhaustive list of examples of “improper behaviour” including:

  1. All forms of harassment, bullying and intimidation, including the use of aggressive words or aggressive behaviour.
  2. Physical assault or the threat of physical assault or other criminal behaviour.
  3. All forms of victimisation.
  4. Discrimination because of age, sex, race, disability, sexual orientation, religion or belief.

How can you avoid allegations that a conversation has been tainted with “improper behaviour”?

  • Avoid all forms of aggressive words or behaviour.
  • Do not put employees under any undue pressure to accept an offer.
  • Provide employees with a reasonable time frame to consider an offer.
  • Make it clear that an employee will not be dismissed if they decide not to accept the offer.
  • Write to the employee after the protected conversation to summarise your discussions set out the agreed course of action.

What happens next?

Once a protected conversation has taken place, the outcome of the negotiations should be recorded in a legally binding settlement agreement.

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Stevi Hoyle - Solicitor

To discuss how Glaisyers can assist you contact Stevi Hoyle on stevi.hoyle@glaisyers.com or via 0161 832 4666.

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