What is a Protected Conversation?
A protected conversation is a legal mechanism that enables employers to have “off-the-record” chats with employees. Provided the conversation is conducted correctly, the employer could discuss an individual’s employment, including dismissal with a settlement agreement. There is no requirement for an existing dispute, and these conversations are not permissible as evidence during a claim.
How Do You Have One?
Typically, employers will approach employees, explaining they want to have such a conversation as per section 111A of the Employment Rights Act 1996 (ERA). The correspondence would be inadmissible in court, provided it doesn’t concern whistleblowing, discrimination or a breach of contract.
What is “Improper Behaviour”, and What Might the Effect of This be?
A s111A protected conversation ensures the discussion is inadmissible in court. However, a person may lose this protection in the event of improper behaviour during the correspondence. Improper behaviour includes, among other things:
- Harassment and intimidation
- Physical assault
- Discrimination because of one’s protected characteristics
What is the Purpose of a Protected Conversation?
An employer may want to terminate someone’s employment for many reasons, including the fact:
- They’re unhappy with their performance
- The organisation is undergoing a structural change
- Redundancy is in consideration
Before 2013, such conversations didn’t exist, meaning these discussions could result in a constructive dismissal if the individual were unhappy. Therefore, employers had a fear of unfair dismissal claims being brought against them. Therefore, in 2013, section 111A of the ERA introduced protected conversations, allowing employers to correspond with employees without these risks.
What Are Possible Points of Discussion in Such Conversations?
Since there’s no requirement for existing disputes, they will unlikely be discussed during the conversation. However, the employer could discuss matters like:
- Poor performance
- Personality clashes
- Organisational changes
The employer would then discuss a potential settlement agreement, including pay and non-financial benefits, in return for terminating one’s employment.
Can You Reject a Request to Have a Protected Conversation?
Employees aren’t obligated to have an ACAS protected conversation. However, it may be a good idea to hear what the employer says to learn what’s on offer.
Can you Start one Yourself?
It’s generally more common for employers to request such conversations, but nothing stops an employee from starting one. They are free to do so if they follow the correct procedure, intending to discuss a settlement agreement.
How Should You Prepare Yourself for a Protected Conversation?
If a protected conversation is requested, preparing beforehand is advisable. The employee should first consider what the conversation will be about. Yet, this may be difficult since there’s unlikely to be an ongoing dispute.
Moving on, the employee could also consider:
- How much is being offered, and how the employer has calculated that amount
- Whether they will be obligated to work their notice
- If the employer will provide a reference to future employers, including any terms attached
- The alternatives to accepting any offer
By preparing for the conversation, the employee can put themself in a position that leads to an optimal outcome.
Are These Conversations Confidential?
They are confidential, provided they remain legally compliant. Should an individual breach the applicable criteria, the conversation will lose its protection and become admissible in court. Therefore, to ensure the conversation remains confidential, there mustn’t be any improper behaviour.
Should Someone Accompany you to the Protected Conversation?
Unlike disciplinary hearings, employees don’t have a legal right to be accompanied during such conversations. Despite this, it’s good practice for employers to allow employees to do so. Therefore, employees should ask their employer if they can be accompanied beforehand.
Should You Record Your Conversation?
Despite these conversations being confidential, it’s advisable to make a note. This ensures that if the conversation becomes admissible in court, a record is kept that can be used as evidence.
Protected Conversations and Settlement Agreements
Employers will initiate such conversations when they want to discuss employment termination under a settlement agreement. The agreement could cover a payout and non-financial benefits like a reference.
What Strategy Should You Use to Negotiate During Your Conversation?
1. Threaten an Employment Tribunal Claim
Employers will most likely want to settle to avoid legal proceedings. This is because legal action could cost them financially and damage their reputation. Therefore, difficult employers sometimes require the threat of legal action to progress negotiations.
2. Goodwill with your Employer
Alternatively, if one has a good working relationship with their employer, taking a more peaceful approach could be wise. One could discuss how much they’ve appreciated their opportunity and how leaving will be hard. They could stress the financial difficulties they may face by leaving their job and ask for a substantial payout in recognition of their valued hard work.
In circumstances where there’s a good working relationship, simply being nice can sometimes provide the best outcome.
3. A Mixture of the Above Approaches
However, if gone about correctly, one could utilise both strategies to obtain the optimum settlement agreement. An individual could offer their goodwill whilst suggesting stronger measures their legal representation has advised upon.
For example, one might explain that their solicitor advises they could potentially obtain significant compensation through an employment tribunal. However, they can add that they prefer to avoid legal action and would rather be offered a reasonable sum.
Yet, regardless of the approach, it’s best to obtain legal advice before negotiations.
Should Your Negotiations be Without Prejudice or Protected Conversations?
The terms without prejudice or protected conversations are often mentioned when negotiating settlement agreements. Individuals may need clarification on the difference, but they are similar legal mechanisms that allow negotiations to occur without the contents being admissible in court.
The main difference is that correspondence can only occur without prejudice if there’s an existing dispute between parties. Therefore, correspondence will likely be a protected conversation if there isn’t an existing dispute.
What Happens After Your Conversation?
Following such a conversation, the employer must allow the employee a reasonable timeframe to consider the settlement agreement proposed. Despite ACAS recommending ten days, this is rarely provided by the employer.
Furthermore, the employee must obtain legal advice before accepting to ensure the settlement agreement is legally compliant. We suggest seeking such advice as soon as possible, as a solicitor could help negotiate the best settlement possible.
Need Help with a Protected Conversation?
Contact us today if your employer has proposed a protected conversation or you’re considering putting one forward. Settlement Agreement Lawyers are employment law specialists and have helped numerous clients with similar legal issues.
To begin your journey with us now:
- Call us on 0800 464 7254
- Complete our online form to request a callbackHow to have protected conversations at work