Top Tips for Employers on Protected Conversations

In simple terms, a protected conversation provides a degree of protection for discussions about possible termination of employment.

The protection only extends to claims for unfair dismissal and not to other types of claim, such as automatic unfair dismissal and discrimination. This means that what is said in a protected conversation may not be admissible for an unfair dismissal claim, but it will be admissible for other types of claim.

Tip 1

Start by informing the employee of the issue. For example, if it is a misconduct issue, make sure to have your investigation meeting and ask the employee if they would be willing to explore an alternative to going through a formal process.

Tip 2

Remember that the protection is lost and the discussion will be admissible for any claim if there is any form of ‘improper behaviour’. There is no definitive list for what constitutes as ‘improper behaviour’, the Tribunal will decide on the facts of each case but it will include:

• All forms of harassment and bullying for example’ the use of offensive words, gestures or displaying aggression
• Any physical assault
• Discrimination
• Undue pressure e.g. demanding a swift decision
• Offers being presented as an ultimatum e.g. if you do not accept you will be dismissed under the formal disciplinary, redundancy or capability process as the case may be

Tip 3

You should allow the individual to be accompanied to any discussions and have a person there to take notes, this will help to ensure the meeting is calm and professional and reduces the risk of ‘improper behaviour’.

From the outset, state that ‘the meeting is being held to have a protected conversation under s111A ERA 1996’.

Tip 4

Ensure you make it clear that there is no forgone conclusion to any formal process and a decision is yet to be made. You should refrain from taking any steps that would indicate that a decision in relation to the formal process has already been made, such as requesting the return of company property or freezing access to company computers.

Tip 5

Ensure you have an up to date Settlement Agreement drafted. This will protect your business if the protected conversation goes well and a deal in principal is reached, giving the employee a reasonable time to consider the terms, e.g. 7-10 days.

If you would like to discuss protected conversations or settlement agreements further, or require any other HR/ Employment Law support please do not hesitate to contact the Employment and HR team by calling 03333 208644 or email law@jcpsolicitors.co.uk.

This content does not constitute legal advice and is provided for general information purposes only.