When can an Employer have a Protected Conversation?

As all good employers know, there is little to be gained from dragging out a failing relationship with an employee.

There are a variety of reasons that an employment relationship can come to an end and if those reasons relate to the employee’s conduct or performance or a redundancy, it might be time to consider having a protected conversation with the relevant employee.

A protected conversation is an “off the record” conversation, used to negotiate exit terms prior to terminating the employee’s employment.  In essence, the discussion is described as protected because the content of the conversation cannot later be relied upon or referred to in an unfair dismissal claim at an Employment Tribunal (subject to some limited exceptions).  The rules surrounding a protected conversation would not apply, however, if there are allegations of whistleblowing, breach of contract or discrimination.

The main motive for having a protected conversation is usually to allow the employer and employee to have a frank and open conversation with a view to reaching a mutual agreement regarding the termination of the employee’s employment.  These conversations have the purpose of exploring whether the employee is interested in agreeing terms, in order to end the employment relationship, rather than proceeding with a performance management, redundancy or disciplinary process.  Such conversations are usually instigated by the employer but an employee can also rely upon the same rules and initiate a protected conversation with his or her employer.

The Acas Code suggests that the following is good employment practice when conducting pre-termination negotiations:

• meet to discuss the reasons for the offer (the employee does not have the right to be accompanied but this is often still allowed),
• set out those reasons in writing, in neutral terms,
• allow a ‘reasonable period of time’ to consider the proposed settlement agreement – at least 10 calendar days, and
• suggest that the employee seeks independent legal advice, especially where a settlement agreement is likely to be used.

It is important to note that the protected conversation can be challenged (and therefore the content of the discussion can be used as evidence in a claim of unfair dismissal), where the employer had behaved improperly.  The Acas Code provides some examples of improper behaviour (but it will differ depending on the circumstances of each case):

• 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
• putting undue pressure on a party

Often a financial incentive is offered to the employee as part of the deal to leave, but not always.  If your business is considering offering financial incentives to secure a ‘clean break’ with an employee, it is advisable to do so by having the employee sign a Settlement Agreement.  Specific advice should be sought in such circumstances

Overall, a protected conversation is a useful tool for an employer to use when managing the end of an employment relationship and can help to allow parties to part ways, without the situation escalating into a costly and stressful dispute.

If you would like to advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.