What is a protected conversation?
A “protected conversation” gives your employer the right to enter into off-the-record conversations with you (without there being an existing dispute), and where a proposal can be made leading to the termination of your employment. It is therefore a mechanism for negotiations to ensue where eventual terms for your departure could be agreed.
Why is it called “protected”?
It is called “protected”, because the existence of this interaction with your employer (whether verbally or in writing), cannot be used or disclosed in any subsequent tribunal proceedings, and so remains completely confidential. There are a few exceptions though- see below for these.
How might your employer make the initial approach?
Your employer may invite you into a meeting for an initial discussion, or they may put something in writing or both. Your employer is likely to refer to having a protected conversation under Section 111A of the Employment Rights Act 1996 (ERA).
Why might your employer want to have a protected conversation?
This is more likely to be where there are performance issues, personality clashes, or pending disciplinary proceedings. Remember, there would have to be no prior dispute in relation to such matters, which means you would generally not have previously interacted with your employer in a real sense relating to these matters.
What if there is a prior dispute?
If there was a prior and/or live dispute which is out in the open, your employer is more likely to make an approach on a “without prejudice” basis (rather than having a protected conversation). This gives your employer the same level of protection as such conversations will remain confidential and inadmissible in any future tribunal proceedings. “Dispute” does not require actual or threatened litigation, but certainly some level of real (not merely apprehended) disagreement or confrontation. A general announcement of redundancies across the company certainly won’t be enough, nor will a redundancy proposal to a specific individual, since by itself that is not yet a dispute.
Some employers in practical terms will mix and match the two (between “protected conversations” and “without prejudice”), and your rights and ability to disclose these discussions will depend on the specifics of your case.
What issues cannot be covered by a protected conversation?
Certain protected conversations are not covered by section 111A of the ERA that relate to complaints of:
- automatically unfair dismissal, such as, whistleblowing, health and safety or asserting a statutory right;
- discrimination, harassment, victimisation or other treatment prohibited by the Equality Act 2010; and
- breach of contract or wrongful dismissal.
This can a real problem for your employer, who may not know what issue you are going to raise during a protected conversation. By raising instances of, for example, discrimination or whistleblowing, you will be able to use the protected conversation in evidence, not only in relation to any may bring, but also on an unfair dismissal claim.
How could intended protected conversations actually lose their “protection”?
For conversations to be “protected” and to retain their confidentiality and inadmissibility in an Employment Tribunal there must not be any “improper behaviour” in the negotiating process. This would ultimately be for an ET to decide on the facts and circumstances of each case. The ACAS Code of Practice for Settlement Agreements provides a non-exhaustive list of improper conduct, which can include:
- all forms of harassment, bullying and intimidation, including through the use of offensive words or aggressive behaviour;
- physical assault or the threat of physical assault and other criminal behaviour;
- all forms of victimisation;
- discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership; and
- putting undue pressure on a party (e.g. your employer saying before any form of disciplinary process has begun that if a settlement proposal is rejected then you will be dismissed).
Where there is improper behaviour by your employer, this could entitle you to resign and claim constructive dismissal (and, of course, refer to the nature of the “protected conversation”. anything said or done in pre-termination negotiations will normally be admissible as evidence.
Seeking early legal advice
It is usually best to seek legal advice sooner rather than later if you are being faced with a protected conversation. You will need an employment lawyer in any event to advise you on the settlement agreement, which will set out the full terms. By this time, if you have already agreed a settlement with your employer and later realise you have been short changed, it can be very difficult to re-negotiate the terms. We have advised and negotiated on tens of thousands of settlements with employers, and so are highly experienced in this area.