Employers: When can you have a protected conversation with an employee?
The government put forward the concept of ‘protected conversations’ as a way of, in the words of the then Prime Minister David Cameron, “a boss and an employee could feel able to sit down together and have a frank discussion at either’s request”. The idea was that these conversations could take place without the employer risking being taken to an employment tribunal, and could take place when the employer wanted to discuss performance concerns or retirement plans.
Being able to have an ‘off the record’ conversation with an employee regarding the termination of their employment can help smooth the path to a successful settlement agreement. Employers are able to have these conversations without the employee being able to rely on the details of the conversation as evidence in an unfair dismissal claim. The protection offered does not apply to discrimination, harassment, whistleblowing or wrongful dismissal claims, or where there has been improper behaviour or conduct.
When an employer wants to have a protected conversation with an employee about terminating their employment, it is important to ensure the conversation is protected by stating that you are about to have a protected conversation, and getting confirmation from the employee that they are happy to proceed on this basis.
It can be helpful to provide the employee with details of the package that is being proposed so that they can consider its terms. It’s important to remember that the conversation will not be protected if undue pressure is put on the employee, and this can include conducting the meeting in an overly forceful or aggressive manner. It’s also important to emphasise that no decision has been taken, and the company is simply putting forward a proposal.
Employers also need to be careful and avoid saying or doing anything that could prove embarrassing if it were to be used subsequently as evidence by the employee in Tribunal proceedings (such as ‘take the deal or we will sack you’).
Employers should proceed with caution when conducting a protected conversation. For instance, it would be wise to mark any communications ‘Protected Conversation S111A Employment Rights Act 1996 and or Without Prejudice, Subject to Contract’.
Getting good advice
No employer wants to be taken to an Employment Tribunal, so if you’re thinking about having a protected conversation with an employee, you may want to take advice to help ensure you do so within the rules.