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How to have a protected conversation – the right way!

Unfortunately, as the Coronavirus pandemic continues to have a devastating impact on businesses’ workloads and income, many employers are finding themselves with no other option than to commence formal redundancy processes. Such processes are time consuming, stressful and unpleasant for both the employees and employers. As a result, in the event that there are a minimal number of redundancies proposed in stand-alone roles, some employers decide to seek their employees’ consents to have a without prejudice conversation/protected conversation in an attempt to bypass the unpleasant formal redundancy process in an attempt to reach an amicable termination.

So what is a protected conversation?

A protected conversation falls under section 111A of the Employment Rights Act 1996 and provides a safe space for employers to advance exit proposals without fear of being cited in legal proceedings. 

It provides a welcome commercial alternative to a protracted disciplinary, performance management process or redundancy process, for example.

However, it is important to note that the protection afforded by section 111A does not apply where the employer conducts itself improperly or where the facts could give rise to a discrimination claim.  ‘Improper conduct’ might be presenting termination as a foregone conclusion, putting unnecessary pressure to resign or accept a deal.   There are still too many cases where employers believe they can say what they like behind closed doors, only to find that the leverage they were using to close the deal is fully disclosable before an Employment judge.  In losing the protected status of the conversation, the chances are any subsequent tribunal claim is lost too.

Some practical tips to keep you on track might be:

  • Start off with your open position first before you have your protected discussion.  If its redundancy; performance or disciplinary, get your open correspondence on record first or have your first official meeting before you have a protected conversation.
  • Test the water.  Don’t present a pre-prepared settlement agreement, or even mention a settlement figure at the outset. Just ask the employee if they would be willing to explore alternatives to the formal process. If they say no, you haven’t compromised anything. If they say yes – it’s going to be difficult for them to argue later that they were not open to negotiation.
  • If the employee is receptive, schedule a subsequent meeting where you do advance your proposals and even your settlement agreement.
  • Allow the employee to be accompanied to that meeting. Whilst there’s no legal right to be, it will naturally keep you in check and you’re less likely to overstep the mark.
  • Have another manager or HR officer present to take notes. If it is alleged that your conduct was improper, you will want to evidence that you did it properly.
  • From the outset, state that the meeting is being conducted pursuant to S111A Employment Rights Act and on a Without Prejudice basis. They are 2 different legal principles with different legal tests. If you don’t succeed on one, you may well do on the other.  Best to cover both bases.
  • Put your proposals to the employee and then allow them adequate opportunity to consider them – ideally 10 working days.
  • Follow the discussion up in writing marked ‘Without Prejudice and subject to S111A Employment Rights Act 1996’.
  • By all means mention what will happen next under the formal “open” process – but don’t allude to the likely outcome or present it as a foregone conclusion.
  • Avoid compelling employees to stay off work whilst they consider their position. At most, offer that as an option but only if that is what they want.
  • Do not implement terminal measures like freezing their email account; requiring them to hand back their company property etc. If you feel you must in order to protect the business, then accept you are taking a commercial risk. Therefore weigh up the cost of an unfair dismissal claim as against the damage the individual can realistically do.
  • Lastly, as soon as the deadline for their response passes, get the employee back into work (if they have taken leave of absence) and continue with the open process previously announced. If the employee is currently furloughed, they can remain on a period of furlough leave whilst you continue with the open process.

Please contact us if you would like more information about the issues raised in this article or any other aspect of employment law at 02920 345 511 or employment@berrysmith.com