What are protected conversations?

A “protected conversation” is effectively a way for an employer to have a confidential, “off the record” conversation with an employee and make an offer to end the employment relationship on agreed terms. If conducted correctly, the contents of the conversation cannot be relied upon or referred to in an Employment Tribunal at a later date, unless it falls under one of the very specific exceptions.

The main motive for having a protected conversation is usually to allow an employer and its employee to have a frank and open conversation with the view to reaching a mutual agreement for 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 facing (for example) a performance management, redundancy or disciplinary process.

Under the rules (set out in s111A of the Employment Rights Act 1996), an employer can ask its employee for a protected conversation and tell them, for example, that their continued employment is at risk and that they will offer the employee a payment in return for their agreement to terminate their employment.

Generally, as long as there are no allegations of whistleblowing, breach of contract or discrimination, then a protection conversation will usually always be off the record, meaning the offer cannot subsequently be used as evidence in an ordinary unfair dismissal claim in the Employment Tribunal.

However, these conversations do not protect improper behaviour on the part of the employer. If the employer acts improperly, for example, by threatening the employee with dismissal if they do not accept what is being offered, then the conversation will no longer be protected.

Employers cannot dismiss employees, or tell them that they will be dismissed, under the guise of a protected conversation. However, employers can say that if the employee does not accept the offer then a disciplinary or performance management process (for example) will commence or continue. However, the employer should make it clear that the outcome of such process is yet to be determined.

Employers cannot discriminate against employees in a protected conversation. For example, if an employee who is selected for a protected conversation due to a protected characteristic (such as race, age, gender, etc), the conversation will not be protected and the employee will have a discrimination claim.

Top tips for conducting a protected conversation?

If you are considering holding a protected conversation with an employee, bear in mind the following top tips:

• only consider a protected conversation where there is no material risk of a claim for automatic unfair dismissal, wrongful dismissal, unlawful deductions of wages or under the Equality Act 2010;

• ensure the employee understands the premise of the conversation and consents to take part;

• Although it is appropriate to explain that the offer made during the protected conversation is an alternative to another process (such as a disciplinary process, for example), employers should make it clear that the outcome of the other process has not been determined and that the employee’s response to the offer will not be a factor in any such decision;

• ensure it is made clear that the employee is under no obligation, or pressure, to accept the offer;

• ensure a note is taken of the protected conversation and that the offer is confirmed in writing; and

• allow the employee a reasonable period to consider the offer – the ACAS code specifies this should be a minimum of 10 days.

Don’t hold any protected conversations or make any offers before you have spoken to a specialist employment lawyer. At MLP Law, our expert Employment Team regularly provide advice on protected conversations and settlement agreements.

For more information on protected conversations and when (and how) to conduct them, please get in touch with the MLP Law Employment Team by telephone on 0161 926 9969, by email at employment@mlplaw.co.uk. You can also follow us on Twitter @HRHeroUK.