‘Protected conversations’
 


In 2013, the law changed to introduce a new legal concept, often called a “protected conversation” (section 111A, ERA). The new rules are designed to help employers to have conversations with employees about ending their employment without risking an unfair dismissal claim. There is a statutory Acas Code of Practice: Settlement Agreements under section 111A of theEmployment Rights Act 1996.



The “protected conversation” regime applies only to ordinary (not automatic) unfair dismissals, and to no other kinds of tribunal claim. 




Under this regime, employees are not allowed to reveal any “protected conversation” to the employment tribunal in an ordinary (not an automatic) unfair dismissal claim, unless there has been “improper behaviour”. The same rule applies to protected conversations initiated by an employee, such as a confidential discussion initiated by someone on long-term sick leave about the possibility of leaving on agreed terms. 


Not just the content of the discussion must be kept confidential, but also the fact that the discussion took place, 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).



There is an exception when the effective date of termination is disputed (see Chapter 10, page 347). The tribunal can be shown evidence of any protected conversation to work out when termination took place (BASRA v BJSS Limited [2017] UKEAT 0090/17/1912).


The main difference between a “without prejudice” and a “protected” conversation is that a discussion can only be without prejudice if there is already a dispute between the parties 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.


The obvious scope for abuse of the “protected conversation” regime has led to a tightly drawn Acas Code of Practice which 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.


An employer cannot pick and choose which parts of protected discussion(s) it wants to exclude from the tribunal and which it wants to rely on (Graham v Agilitas IT Solutions Limited [2017] UKEAT 0212/17/1210).


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


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.