Improper behaviour
[ch 14: pages 514-515]Examples of improper behaviour under the Acas Code removing the “protected” status of the conversation include:
• harassment, bullying, threats, intimidation;
• discrimination and victimisation;
• putting undue pressure on an employee to accept an offer, for example:
◊ not allowing a reasonable time (usually 10 calendar days) to consider the offer and get independent legal advice;
◊ saying at the start of negotiations that if a settlement proposal is rejected, the employee will be dismissed;
• by the employee, for example, threatening to undermine the employer’s reputation.
Improper behaviour does not include setting out in a “neutral manner” the reasons behind the proposed settlement agreement, or factually stating what is likely to happen if no settlement is achieved, including the possibility of starting a disciplinary process.
Setting a too short timescale for acceptance of the offer (just five days) and exaggerating the seriousness of disciplinary allegations were both examples of “improper behaviour” in Lenlyn UK Limited v Kular [2016] UKEAT/0108/16/DM.
The protected conversation regime does not apply in Northern Ireland.
Acas, Settlement Agreements (under section 111A of the Employment Rights Act 1996) (https://www.acas.org.uk/code-of-practice-settlement-agreements/html)
Acas, Settlement agreements: a guide (https://archive.acas.org.uk/media/3736/Settlement-Agreements-A-guide/pdf/Settlement_agreements_Dec_18.pdf)