Posted on 15 February 2017
We would all like to think that our employment relationships will remain on an even keel, however, the truth is that sometimes even the closest of relationships can go sour. So what pathways are open to an employer in those instances? Clearly it is in the interests of both parties to bring the employment to an end in the most amicable way possible, maybe by way of a settlement agreement.
A method commonly used to initiate this process is by way of an “off-the-record” conversation known as a “protected conversation”. The issues discussed in this process are not supposed to be admissible in an employment tribunal hearing, but employers need to be aware that there can be exceptions to these rules.
The “protected conversation” policy was introduced under Section 111A of the Employment Rights Act in July 2013. It was, at the time, a flagship policy of the Governments employment reform. Previously, the “without prejudice” rule was applied, where it was necessary for an employer to show a dispute (i.e. the existence of, or implied threat of, legal proceedings) before a conversation could be protected in this way. Protected Conversations were introduced to address the gap, hence making it possible to protect any discussions where there is no dispute.
The theory behind the ruling is that any details of such discussions cannot be used in any subsequent employment tribunals. Sounds a good idea doesn’t it? It should free employers up to have a free and frank discussion on exit packages with the employee, without any fear of having those discussions brought before an employment tribunal. But does it?
The legislation on this is not clear. It is debatable whether protected conversations actually provide any greater protection for employers at all! Indeed, the common law “without prejudice” principle is probably a more reasonable approach to take. The fact is that if a discussion does not fall within the (what is a very narrow) definition of what constitutes a protected conversation, there is every likelihood it could still be admitted as evidence in an employment tribunal claim.
There are a number of exceptions to the protected conversation rules which reduce their usefulness to employers. “Improper conduct” such as inducing an employee to resign, not adhering the the ACAS Code in terms of the timescales, or instructing an employee to accept an employee to accept a Settlement Agreement, will render the conversation liable to be no longer protected. Furthermore, the regime only covers routine unfair dismissals, so claims of whistleblowing, breach of contract or discrimination will not be protected. The protected conversation is therefore more of a minefield for employers, who could easily be under the misapprehension that they are fully safeguarded when entering a protected conversation, entitling them to say what they want!
Obviously, as an employer, you want to make sure you get your management of any situation right, both legally and financially. If you are unsure of any of the details mentioned in this article, or are seeking advice on an HR matter please contact Viv Tolley at Smith Cooper HR Advisory on Vivienne.Tolley@smithcooper.co.uk.