What is a protected conversation?

A protected conversation is a way for your employer to have an “off the record” conversation with you and make you an offer to leave the business. 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 the employer and employee to have a frank and open conversation with the view to reach 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 proceeding with a performance management, redundancy or disciplinary process for example.

Under the rules, an employer can take you aside, ask you for a protected conversation and tell you, for example, that your performance is not as expected, your continued employment is at risk and that they will offer you a payment in return for your agreement to terminate your employment.

As long as there are no allegations of whistleblowing, breach of contract or discrimination, then a protection conversation is off the record.

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

Your employer cannot dismiss you or tell you that you will be dismissed under the guise of a protected conversation. They can say that if you do not accept the offer then this will start a disciplinary or performance management process, but they should not tell you that this process will lead to you being dismissed.

Your employer cannot discriminate against you in a protected conversation. IF you think you have been selected for the protected conversation due to your gender for example, then the conversation will not be protected. It is not uncommon for employers to attempt having protected conversations with women returning from maternity leave, but this will almost certainly give rise to a claim of maternity discrimination.

What to do if you’re asked to have a protected conversation?

If you are invited to have a protected conversation with your employer, don’t panic. Agree to have one, there is no harm in hearing what your employer has to say and it may benefit you. When you’re in the meeting:

• Listen to what your employer has to say but do not respond to any offer made. Say you’ll consider what your employer has said and come back to them. You are entitled to take reasonable time to consider the offer being put to you. The ACAS code specifies this should be a minimum of 10 days.
• Make sure you take detailed notes and ask for any offer to be put in writing to you.
• Clarify any points which you are not sure of, for example, will you be expected to work your notice period?

Don’t make any decision or agree to any offer before you have spoken to a specialist employment solicitor who can help you. At MLP Law, our specialist employment team regularly provide advice on protected conversations and settlement agreements. We also assist with negotiations around a settlement package and employment tribunal claims.

For more information on protected conversations and what to, or if you would like any further information, our employment team would be happy to discuss with you further. Please contact us on 0161 926 9969 or by email at employment@mlplaw.co.uk.