Protected conversations: avoiding the pitfalls

You may already know that the concept of protected conversations is to allow employers the possibility of exploring with an employee the mutual termination of their employment (in return for a financial payment via a settlement agreement), without fear of anything said by the employers being used against them should negotiations break down and a tribunal claim be raised. 

However, we often see employers making mistakes with such conversations which are simple to fix, so here are our top tips on holding protected conversations:

• Assess the risks fully before proceeding with a protected conversation, by identifying the potential claims an employee may raise. Only negotiations relative to ordinary unfair dismissal claims are inadmissible as evidence at a tribunal. Mere allegations of discrimination or automatically unfair dismissal by the employee can lead to negotiations relating to those allegations being admissible at tribunal.
• In most cases a protected conversation is being held as a precursor to a process which may follow if agreement cannot be reached, e.g. disciplinary or redundancy. In such cases, it is better for the formal open process to be initiated first before holding a separate protected conversation.
• Plan carefully what will be said or communicated to the employee during negotiations. It is safest to assume that such conversations and related correspondence may be admissible at a tribunal.
• Obtain the employee’s agreement to having such a conversation before proceeding and make it clear that there is no obligation on the employee to have that discussion. If you dive straight in, you have shown your hand and the employee may argue that they were never open to having a discussion.
• Explain at the outset of the conversation that discussions are subject to contract and entirely confidential. Mark correspondence as confidential, subject to s 111A of the Employment Rights Act 1996 (the legislation which applies to protected conversations), and subject to contract.
• Be wary of behaviour. If anything said or done amounts to improper behaviour, the negotiations will be admissible to the extent that the tribunal considers just. Examples of improper behaviour include harassment, bullying and placing undue pressure on an employee, e.g. by suggesting that dismissal is inevitable if agreement cannot be reached. It is acceptable to explain factually and in a neutral manner the potential alternatives.
• Provide a reasonable period of time for the employee to consider the proposed settlement agreement, ideally 10 calendar days. If the employee is absent from work or disabled, adjustments may be needed to the process, including the timescale for responding.
• Avoid giving the employee time off to consider the proposal unless the employee wants that or there is a pressing business risk if the employee remains at work. Time off makes it harder for the employee to return to work if no agreement is reached.
• Check your confidentiality clauses in your settlement agreements to ensure that they remain enforceable. The law surrounding confidentiality clauses is evolving.
• Lastly, don’t forget that the without prejudice rule still exists (a legal principle which works in a similar way to protected conversations), but it only applies if there is a genuine dispute between the parties. If there is, you should obtain the employee’s consent to having a without prejudice and protected conversation and mark all correspondence as “without prejudice” too.