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What Is A Protected Conversation?

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Employment law can be something of a minefield, and it’s always beneficial to understand how specific legal regulations and scenarios could impact your business.

For HR teams and company owners, the prospect of being accused of unfair dismissal is daunting, even if you have followed best practice and acted fairly. Claims can drag on for many months, even years in some cases and this can have a severe impact on the day to day running of the business. A specific legal process exists which allows employers to potentially avoid the prospect of a claim being brought.

Since 2013, employers have been able to engage in “protected conversations” with their employees. In this guide, we’ll consider what precisely what this term means and how it affects employers.

What is a protected conversation?

Under Section 111A of the Employment Rights Act 1996, employers are entitled to hold protected conversations with their staff under specific circumstances.

These conversations are confidential, and they enable both parties to talk in private to come to a mutual agreement to terminate employment. In essence, this allows them to have an “off record” conversation.

In this case, the employer and the employee can potentially agree to a mutual parting using a Settlement Agreement. A Settlement Agreement is a legal document which contains the details of the resolution and normally provides that in return for a sum of money, the employee will agree to waive their rights to sue the employer for any claims arising from their employment.

The benefit of a protected conversation is to simplify and shorten the process of terminating employment and allow employers to have a relatively frank conversation with employees.

When is a protected conversation permitted?

An employer can enter into a confidential discussion about employment termination with an employee under the following circumstances:

  • The conversation represents a genuine attempt to nullify a contract and identify an agreement that satisfies both parties;
  • The conversation is related solely to normal dismissal cases. Information will not be protected in the case of unfair dismissal claims that relate to additional grievances, such as discrimination, harassment, whistleblowing or victimisation;
  • The negotiation process must be fair, with no evidence of ‘improper behaviour.’ This term covers harassment, bullying, intimidation, assault or threat of assault and any form of discrimination or victimisation.

Advice for employers

Protected conversations can be beneficial for employers looking to avoid complex and drawn-out dismissal cases, but it’s essential to understand the ins and outs of the law and when it can be applied.

Here are some useful tips for employers:

  • Make sure you’re aware of the permitted circumstances in which to engage in protected conversations
  • Research Section 111A before you make an offer in the form of a Settlement Agreement
  • Make sure you conduct the conversation fairly to avoid any accusations of improper behaviour
  • Seek legal advice before the meeting and ensure that a valid Settlement Agreement is prepared
  • Communicate with the employee in question prior to the meeting so that they are aware of the circumstances and they understand that the discussion will be confidential – this is vital to ensure that the meeting is truly “off record”
  • Give the employee time to consider the Settlement Agreement offer, ACAS normally recommend 10 days

Summary

The introduction of protected conversations enables employers to engage in confidential discussions with employees related to the termination of their employment. Under these guidelines, it is possible for an employer to offer a settlement agreement.

The details of the conversation can remain private, provided that the scenario meets the qualifying criteria. If the negotiations are unsuccessful it means that the matters discussed in the protected conversation normally stay “off record” and can’t be used in evidence at a Tribunal hearing.

If there is a suspicion of improper conduct during the negotiation process, or the claim relates to anything other than a straightforward dismissal, the conversation will not be protected.

If you’re an employer attempting to navigate employment termination, it’s critical to understand the process. Seeking expert advice is wise to eliminate stress and ensure you stay on the right side of the law.

About The Author.

James Rowland

James Rowland

James is the Commercial Director at Neathouse Partners. He is responsible for all Account Management, Sales & Marketing within the company. Having gained a BSc in Psychology and further study for his post-grad Law degree, James embarked on his legal career in 2014. Since then, he has become an Associate Director at a national Employment Law boutique, studied for a Masters in Marketing, and as of 2018, been a Director at Neathouse Partners. Outside of the office, James is a keen cricketer, playing very badly (he calls himself a Batsman but averages single figures) in the Cheshire League for Nantwich CC. He also loves watching his childhood football team, Crewe Alexandra, and is an avid lover of cinema (his favourite film being Pulp Fiction). Feel free to connect with James on LinkedIn.
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