Our ‘Top 5 Tips’ for...Holding a Protected Conversation

There are often situations where an employer may wish to propose to an employee that their employment will terminate on mutually agreed terms. This may be due to, for example, an anticipated redundancy process, or performance issues. It is often seen by employers to be commercially beneficial to start a pre-termination negotiation to see if a mutually suitable exit can be agreed without the need to implement a formal redundancy or performance management process. To start these pre-termination negotiations, the employer must ask the employee if they are willing to have what we refer to colloquially as a ‘protected conversation’. If the negotiations are held correctly, the content of the negotiations cannot be referred to by either party in any subsequent Employment Tribunal claim – hence the term  ‘protected’.

Holding a protected conversation can be a useful tool for an employer who wishes to avoid implementing a formal redundancy or performance improvement process but there are many pitfalls that an employer can fall into when trying to navigate their way into (and out of) a protected conversation.

With this in mind, we have outlined below our top 5 tips for holding a protected conversation:

1.Remember that the ‘conversation’ should be with a view to actually negotiating an exit

Some employers have been under the misapprehension that a ‘protected conversation’ means that they can have a difficult conversation with an employee at any time in the knowledge that it can be ‘protected’ if they pose it correctly. However, the legislation refers specifically to ‘pre-termination negotiations’ and it is important that the conversation is held with a view to actually negotiating the exit of an employee.

2.Avoid “improper behaviour”

Any ‘improper behaviour’ by an employer could render the content of the pre-term negotiations admissible in any subsequent unfair dismissal claim. There is no statutory definition as to what constitutes improper behaviour but it is understood to include bullying, harassment and intimidation as well as undue pressure. An employer could be accused of applying undue pressure to an employee where they have not given them a reasonable time to consider the settlement offer (ACAS recommends at least 10 days) or advising that an employee will be dismissed if they do not accept the offer.

3.Consider the alternative

We would recommend that the employer is clear in their mind as to what the alternative is if the employee decides either not to proceed with the protected conversation or ultimately to reject the settlement offer. Is it, for example, that a performance improvement process needs to be implemented?  Knowing what the alternative is, makes it easier for the employer to pose the potential options to the employee at the start of the discussions. It also means that both the employee and the employer are clear about what next steps are if the employee is not willing to accept the settlement offer. However, it is important that the employer makes it clear to the employee that the outcome of any formal process, such as redundancy or performance improvement, is not yet known and that the employee’s decision regarding the offer will not affect the outcome of that process.

4.Remember that the conversation is not always ‘protected’

Such discussions are only ‘protected’ ( i.e. inadmissible as evidence) in unfair dismissal proceedings. It is vitally important that employers remember that pre-termination discussions are NOT protected from being disclosed during the course of any discrimination, automatically unfair dismissal or breach of contract claim. This means that employers need to tread very carefully when considering approaching an employee about a protected conversation and whether it is appropriate in that situation.

5.Seek legal advice beforehand

Holding a protected conversation with an employee can be a very useful tool in negotiating an exit from a commercial perspective. However, the use of protected conversations and their purpose is often misunderstood which can lead to difficulties later down the line if an employer is facing a Tribunal claim. There are a number of circumstances in which such discussions are not in fact ‘protected’ and it is important that employers are aware of these. We would recommend that employers obtain legal advice before embarking on a protected conversation with an employee to ensure that they are clear on the parameters of the discussion and to identify any potential pitfalls.

Should you require any further advice on holding protected conversations, please do not hesitate to contact our Employment Team on 0333 0044333.

Disclaimer: Please note that the content of this article is for information purposes only. It is not intended to be construed as legal advice and should not be treated as such.