More commonly we are receiving enquiries from clients who are being asked by their employers to attend what are termed “Protected Conversations”. Set out below is some information about what these types of conversation are, when they might be offered, and some useful guidance on the types of topics to ensure are covered. Read on for more…
What Is a Protected Conversation?
A Protected Conversation is any exchange of communication (so a phone call, meeting, letter, email, or other message) between the employer and employee where they are likely to discuss bringing the employee’s employment to an end on agreed terms. The term “Protected Conversation” is used because the conversation is off the record and will not be admissible in any later claim for either unfair or constructive unfair dismissal, so long as there is no improper behaviour.
When Might A Protected Conversation Be Offered?
Many employers may invite employees to attend a Protected Conversation in circumstances where they want to avoid the formality or perhaps discomfort of an employment process and where they have already considered that ending the employment relationship might be best. A few examples of where a Protected Conversation might be offered include: –
- If an employee is not hitting their targets but the employer does not wish to enter a long and potentially unsettling capability or performance process. Here a Protected Conversation could be offered as a means of giving the parties an opportunity to part ways on an amicable and swift basis without such a process starting.
- If an employee is at risk of redundancy but the employer does not wish to commence a formal redundancy selection process which might prove to be unsettling for both the employee in question and other colleagues. Here a Protected Conversation could be offered as a means of bring the employment relationship to an early end without a redundancy or restructure being announced more publicly.
- If a dispute has arisen between an employee and their employer (or perhaps another colleague) and it seems like resolution may prove difficult. Here a Protected Conversation could be offered as a means of allowing the parties to end the employment relationship and resolve the dispute without formal legal redress.
Do I Have To Agree To Having A Protected Conversation?
No, you don’t have to agree. Protected Conversations are entirely voluntary and so you must not be placed under any pressure or duress to agree to that them.
The above said, I tend to advise clients to hear what their employer has to say. Very often, an unexpected proposal could be made which suits the employee’s personal choices moving forward. Remember there is no obligation to accept any offers made, and so as above, I tend to advise clients to at least hear their employer out.
What Can I Ask For During a Protected Conversation?
If, (and only if) you are certain you are engaged in a Protected Conversation (see above) and further, you have decided you would like to leave your employment on agreed terms, does this guidance apply to you. If it does, and you are clear leaving is in your best overall interests, I have listed below some things you might want to consider asking for. This list is not exhaustive and each case will vary, depending on the circumstances.
- An agreed termination of employment date. This might sound odd, but you will need to agree a date when your employment will end. Before you jump to any quick decisions, check your contract and make sure you are either working your full notice period, or at least receiving a payment in lieu of it.
- A payment in lieu of notice. As above, check your contract of employment and make sure as part of any deal, you are either working your notice, or receiving a payment in lieu of it.
- Holiday, bonus, shares and benefits. Carefully think about what you will lose if you agree to leave your employment. Will you receive any payments for your accrued but untaken holiday and any other benefits you would have received if you remained employed. Also, consider if there is any entitlement under any company share or bonus scheme. Factoring these payments into a deal could be very lucrative.
- Compensation. If you are leaving your employment on agreed terms and waiving the right to pursue any employment law claims it is imperative you know a) what claims you might actually have, b) the value of them, and c) what would be a reasonable settlement figure. When you have undertaken this assessment, you should be asking for a fair compensation payment.
- Reference and announcement. In some cases, you might feel it would help you if you received an agreed reference and knew what your employer was going to tell your colleagues about your departure. As such, consider if an agreed reference and announcement might be beneficial to you.
- Restrictive covenants. Again, look back over your contract of employment and think about if you have any terms which bind you in the future, despite leaving your employer. Usually, restrictive covenants will hinder your ability to work for competitors, contact or deal with customers, and perhaps even stop you from poaching staff. If you are concerned about your restrictive covenants, it might be possible to ask your employer to revisit these with you and agree to a reduced burden.
- Legal fees. Even if you have a good idea of the package you want, your employer is still likely to ask you to sign a contract (usually called a Settlement Agreement) to confirm your agreement to leave and waive the right to bring any legal claims. As part of that, you will need legal advice and so ask your employer to cover those fees. General information about settlement agreements, can be found here – https://lincslaw.co.uk/services/settlement-agreement/
Recent Client Feedback
We are experts at helping clients with Protected Conversations and Settlement Agreements. Recent feedback includes: –
“Sophie at LincsLaw was brilliant. She explained everything so well, which left me in no doubt regarding my settlement agreement. The turnaround was super quick and yet she took the time and make sure I understood everything. Sophie gave me a different perspective and explained all my options”.
“From a position where my options looked fairly bleak following a suspension at work, Sophie helped me with negotiating a significant five figure settlement, a neutral reference and a positive communication regarding my exit to former colleagues. During my first meeting I was very nervous – I was worried about spending a large sum of money on legal advice and my self confidence was shattered following what I strongly felt was an unfair suspension. Those feelings soon disappeared, as without Sophie’s advice I would not have been able to negotiate what we did with my former employer… I cannot thank Sophie and her team enough. The last few months have been incredibly stressful for my family and I… but I would recommend Lincs Law and the team there without hesitation. Thank you!”
Lincs Law Employment Solicitors Can Help You
If you have been invited to attend a Protected Conversation, or have already been offered a Settlement Agreement, please contact us for a free, no obligation enquiry. Simply use the contact form, engage in a webchat, email contactus@lincslaw.com or call us on 01522 440512 and we will be happy to help.
Alternatively, for more information about the services we provide, visit www.lincslaw.co.uk.
Sophie Goodwill
Specialist Employment Solicitor, Lincs Law Employment Solicitors
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