Protected Conversations

In 2013, the law changed to introduce a new legal concept — the “protected conversation”. These are confidential discussions to end the employment, aimed at making it easier for employers to initiate discussions about dismissing staff without risking a tribunal claim (section 111A ERA 96, section 14 ERRA 13). There is also a new Acas Code of Practice on Settlement Agreements under section 111A oftheEmployment Rights Act 1996. A tribunal can take into account failure to follow this Acas Code, but there is no automatic adjustment of any award.

The “protected conversation” regime applies only to ordinary (not automatic) unfair dismissals, and to no other kind of tribunal claim. For example, it has no relevance in the context of discrimination claims, or dismissals due to union-related activity.

Employers can seek to initiate these protected confidential discussions with their employees without warning. Employees are not allowed to reveal the content of any “protected conversation” in any standard claim for unfair dismissal, unless there is “improper behaviour”.

This change in the law makes no difference to the established law, which prevents “without prejudice” discussions being revealed to the tribunal, as explained on page 42.

The key difference between a “without prejudice” conversation and a “protected” conversation, is that a discussion can only be “without prejudice” if there is an existing dispute between the parties. Unlike a “protected conversation”, the law does not allow an employer to spring a “without prejudice” conversation on an employee entirely without warning.

The obvious scope for abuse has produced a tightly drawn Acas Code of Practice which may deter many employers. In particular:

• employers must allow an employee “reasonable” time to consider any agreement reached following a protected conversation. The Code recommends at least 10 calendar days for considering any formal written agreement and taking independent advice; and

• the Code says it is good practice to have a face-to-face meeting at an agreed time and place to discuss the settlement terms and to allow employees to be accompanied to the meeting by a trade union official, union rep or work colleague. While not a legal requirement, this practice may “help to progress settlement discussions”, says the Code.

If asked to engage in a “protected conversation”, it is sensible to ask to be accompanied by a union rep if you have one. The employer will almost certainly make a written note of the conversation. Be sure to ask for a copy, and make comments if you think it is inaccurate.