If an employer and employee have decided to part ways, often one or the other will ask for a Protected Conversation. Read on for more information about Protected Conversations, including what they are and how they can be used.
What are Protected Conversations?
This is a meeting, discussion or exchange of correspondence whereby an employer and employee negotiate bringing the employee’s employment to an end. Protected Conversations are kept “off the record” and cannot be referred to in any later unfair or constructive dismissal claim at the Employment Tribunal. The idea of Protected Conversations is to allow the parties to openly and frankly negotiate ending the employment relationship without concern that their representations will be held against them at a later date.
How do Protected Conversations happen?
You will need to be told that a Protected Conversation is taking place. This is usually in the form of being invited to meeting where the intention of the meeting is clearly stated and, possibly, a reference is made to the Employment Rights Act 1996, Sec 111A. However, I have had clients who have been asked by their manager for a “quick chat” and then told they are having a Protected Conversation without any advance warning.
What should I do in a Protected Conversation meeting?
This really depends upon how the Protected Conversation has been brought about. If you have been in dispute with your employer and have initiated the process, you need to make sure you attend the meeting with a clear idea of your potential claims, their likely value and how you would like the situation to be brought to a conclusion. The better prepared you are for the discussion, the easier it will be for you to negotiate.
If you have been given advance notice of a Protected Conversation meeting by your employer, you need to consider what your preferred outcome would be. As above, you need to prepare so that you attend the meeting with an assessment of your potential claims and their likely value.
For many of my clients, they have no warning about the true purpose of the meeting and the first signal they have is seeing someone Human Resources sat waiting for them. Sooner or later an envelope is slid across the table with an offer and my client is sent home in a state of shock.
If the Protected Conversation meeting has been sprung upon you without warning, the best response is to say as little as possible and take full and detailed notes of what is being put to you. This would include any comments about why your employer wants to start a Protected Conversation to end your employment. You do not have to agree anything at the meeting and you should not feel pressured into responding.
What happens after Protected Conversations?
Usually there will be some negotiation and, if terms are acceptable, both you and your employer will sign a Settlement Agreement. A Settlement Agreement is a formal document which will set out the terms you have agreed. In essence, you will agree to give up your employment and any employment rights and claims you may have in exchange for a payment of compensation.
If negotiations do not result in a Settlement Agreement, then it is as if the Protected Conversation never happened.
What if I disagree with what was said in the Protected Conversation?
Although Protected Conversations cannot usually be referred to in subsequent Employment Tribunal claims for unfair or constructive dismissal, they do have their limitations. Firstly, as they only apply to constructive and unfair dismissal claims, they do not offer protection in other types of claims. For example, an employee could refer to the comments made during a Protected Conversation in a discrimination claim or a claim for wrongful dismissal.
Secondly, if there has been “improper behaviour” by either the employee or employer during negotiations, the protection may be lost. In the ACAS Code of Practice on Settlement Agreements, examples of improper behaviour include:
- Bullying and harassment
- Threats of assault
- Undue pressure
Lincs Law Employment Solicitors Can Help You
If you have been invited to a Protected Conversation, call us on 01522 440512 for a no obligation, free telephone consultation about your matter. Alternatively, for more information about Settlement Agreements, please visit our website at https://lincslaw.co.uk/services/settlement-agreement/
Sally Hubbard, Specialist Employment Law Solicitor
Lincs Law Employment Solicitors, Lincoln