Protected Conversations

What is a protected conversation?

A "protected conversation" provides your employer the right to have off-the-record conversations with you (without there being a prior disagreement or dispute) and make a proposal that might lead to your termination, which would be under a settlement agreement. As a result, it's a framework for talks to take place, with the goal of agreeing on final conditions for your departure.

The protected conversation is protected; however, it does have its limitation. For example, if there has been any improper behaviour, there may a possibility to refer to these discussions in an employment tribunal claim.

Improper behaviour includes:

• harassment, bullying and intimidation
• discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership
• unfair pressure, such as saying that if the offer is rejected then the employee will be dismissed in any event

Why is it called ‘protected’?

In 2013 the government introduced a new section, 111A, to the Employment Rights Act 1996. The idea behind this new section was that an employer may want to discuss ending an employee’s employment without the fear of these discussion, including any settlement agreement offer, later being disclosed as evidence in employment tribunal and prejudicing the employer’s case. In theory, a protected conversation enables an employer to offer an employee money to leave without risk especially if is not a sufficient reason for a fair dismissal and termination of the employment contract.

The presence of this engagement with your employer (whether verbally or in writing) cannot be utilised or revealed in any later tribunal proceedings, it is referred to as "protected." It is confidential to the employee and employer.

What’s the purpose of a protected conversation?

The purpose of a protected conversation is a framework that enables both employers and employees to speak openly without the risk of these conversations being used against them in an employment tribunal.

Normally the employer will propose the termination of employment contract on mutually agreed terms under a settlement agreement. There may be several reasons and issues behind these conversation for example:

• concerns about poor performance
• reorganisation
• clash of personalities
• other disciplinary allegations

Initiating a protected conversation can same time and expense for the employer rather than starting the long process of formal disciplinary or redundancy procedures.

What to do if asked to have a protected conversation?

If you’re invited to join a protected conversation with your employer, we’d recommend agreeing to have one and it is our advice that you are allowed to take someone with you preferably a trade union representation. Whatever your employer has to say with you, it’s not going to be to your disadvantage.

When in the protected conversation, remember to:

• Simply pay attention to what your boss has to say, but don't reply to any settlement offers or complaints of your work or behaviour. Say you'll think about what your boss stated and get back to them.
• It's also a good idea to specify what would happen if you reject a settlement offer. With any luck, your boss will inform you that you will be fired, removing the protection from the dialogue and allowing you to negotiate a better arrangement.
• You should confirm any aspects of the offer that you are unsure about, such as whether you would be obligated to work during your notice period and what tax treatment the business will apply to the payments.
• Take careful notes on what your boss says in case there is a later disagreement. Following the talk, you should carefully evaluate the offer presented and how you might be able to enhance it. Often, your employer's initial offer isn't the greatest.

How could a protected conversation fail?

A confidential chat may not result in a legally enforceable settlement agreement. There would be no need for settlement negotiations and a protected talk if the work relationship was completely satisfied. Due to the circumstances, it is conceivable that the protected dialogue may result in a significant disagreement. In the worst-case scenarios, the employer is brought before an employment tribunal.

Discrimination, wrongful dismissal (non-payment of notice pay), whistleblowing (public interest disclosure), and other types of automatic unfair dismissal are among the causes of action that can be brought before an employment tribunal. The employer may be completely unaware of the prospective claims that the employee may be able to make as a result of the protected communication. A protected communication is only shielded when the claim is for unjust dismissal. The protection provided is limited. Many employment tribunal suits include several allegations, such as discrimination and unjust dismissal. The safeguard only applies to evidence relating to a wrongful dismissal. In this case, it will not cover discrimination. In this instance, the employer's protection from the protected communication will be restricted.

What is Section 111A of the Employment Rights Act 1996?

Section 111A of the Employment Rights Act 1996 is the legislation setting out the framework and stating that evidence of pre-termination negotiations can’t be used in an unfair dismissal claim. Pre-termination negotiations means any offer or discussion about the possibility of ending the employment with a settlement agreement.

Can employees initiate a protected conversation?

An employee can request a protected conversation with their employer, provided that it is with a view to agreeing a settlement agreement.

In the same way an employer initiates the conversation, the employee will need to ask their employer if they are willing to have an off the record conversation. Let them know that the details of the conversation should be kept confidential because it’s with a view to reaching a settlement agreement.

If your employer is not aware or does not understand the principles of a protected conversation, you may want to refer them to the ACAS Guide to Settlement Agreements, which gives them all the information they need.

You may have concerns or issues within the workplace and thinking about raising a formal grievance, this may give your employer the chance to settle this without the need for the formal process and disruptive investigations.

Do you have the right to be accompanied during the protected conversation?

There is no legal right to be accompanied at a protected conversation unlike disciplinary or grievance hearings.

However, it is good employment practice for the employer to allow the employee to be accompanied.

We recommend that you should make the request to be accompanied in writing to the meeting. but, if your employer refuses this request and as stated above you should attend alone if you feel able to.

Good practice of protected conversations

The proper practice of protected conversations can be found here via the ACAS Code of Practice on Settlement Agreements; which can be found here: https://castleassociates.org.uk/employment-law-a-z/acas-code-of-practice-settlement-agreements