Proposals to prevent employees relying on “protected discussions” pre-dismissal

From Summer 2013, the law will change to make it easier for employers to sack employees by introducing the concept of the “protected conversation”. Under plans contained in the Enterprise and Regulatory Reform Act 2013 (Clause 12), in a standard unfair dismissal claim an employee will not be allowed to rely on evidence of any offers or discussions that take place at any time before the employment is terminated with a view to it being ended on agreed terms, unless the employer has engaged in improper behaviour. Acas is consulting on a new Code of Practice on Settlement Agreements which will provide guidance on what amounts to improper behaviour.

Note that this new law is only triggered in standard unfair dismissal cases. It will not apply to any other jurisdiction. In particular, it will not apply to automatically unfair dismissals or claims of discrimination.

For a critical analysis see Justice Deferred: a critical guide to the Coalition’s employment tribunal reforms, Renton and Macey, published by the Institute of Employment Rights 2013.