‘Protected conversations’
 



In 2013, the law changed to introduce a new legal concept, often called a “protected conversation” (section 111A, ERA). The main aim of this new regime is to help employers to have conversations with employees about ending their employment without risking an unfair dismissal claim. Employees can also use section 111A ERA if they want to initiate a protected discussion with their employer about agreeing terms to leave their employment, for example, to end a period of long-term sickness absence. Advice should be sought from a union rep or solicitor before taking this step. 


There is a statutory Acas Code of Practice: Settlement Agreements under section 111A of theEmployment Rights Act 1996.




The “protected conversation” regime under section 111A applies only to ordinary (that is, not automatic) unfair dismissals, and to no other kinds of tribunal claim. Under the terms of this regime, both sides are barred from revealing any “protected conversation” to the employment tribunal in an ordinary (not an automatic) unfair dismissal claim, unless there has been “improper behaviour”. 



Not just the content of the discussion must be kept confidential, but also the fact that it took place at all and any internal communications about it, for example, emails between management and HR about settlement discussions (Faithorn Farrell Timms LLP v Bailey [2016] UKEAT/0025/16/RN). An employer cannot pick and choose which parts of any protected discussions it wants to exclude from the tribunal (Graham v Agilitas IT Solutions Limited [2017] UKEAT 0212/17/1210).





There is an exception where the effective date of termination (EDT) is disputed (see Chapter 10, page 363). A tribunal can be shown evidence of a protected conversation in order to work out the date of dismissal, although not whether there has been a dismissal at all (BASRA v BJSS Limited [2017] UKEAT 0090/17/1912). 



The main difference between a “without prejudice” discussion and a “protected” conversation is that a discussion can only be without prejudice if the parties are already in dispute when it takes place. In other words, it is not possible to spring a without prejudice conversation on an employee without warning and still maintain its confidential status before the tribunal. By contrast, under the “protected conversation” regime, there is no need for a pre-existing dispute. This means that a conversation about ending the employment can be initiated by an employer out of the blue and still kept secret from the tribunal in any later claim.



The obvious scope for abuse of the “protected conversation” regime has led to a tightly drawn Acas Code of Practice. This states, in particular, that: 





• employers must allow an employee reasonable time to consider any agreement reached following a protected conversation. At least 10 calendar days are recommended for considering any formal written agreement and taking independent advice; and





• 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. Although not a legal requirement, this practice may “help to progress settlement discussions,” says Acas.



If asked to participate in one of these discussions, union members should ask to be accompanied by their rep, and should ask early on for a copy of any meeting notes.



If an employee suspects they are being targeted for an automatically unfair or discriminatory reason such as age, pregnancy or trade union-related activities, they should consider raising this early. The rules protecting a conversation from disclosure to the tribunal only apply to a straightforward unfair dismissal claim, not to an automatically unfair or discriminatory dismissal.