Protected conversations

In 2013, the law changed to introduce a new legal concept known as the “protected conversation”. The purpose of the new rules is to make it easier for 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 Agreementsunder section 111A of the Employment Rights Act 1996. There is no automatic adjustment of any compensation award when this Code is breached.

This new “protected conversation” regime applies only to ordinary (not automatic) unfair dismissals, and to no other kind of tribunal claim (see Chapter 10: Dismissal). For example, it has no relevance to claims for discrimination, or to dismissals that relate to trade union membership or activity.

Under the new rules, found in the Enterprise and Regulatory Reform Act 2013 (ERRA 13), employees are not allowed to reveal the content of any “protected conversation” in a standard unfair dismissal, unless there has been “improper behaviour”.

This change to the law makes no difference to the established ban on “without prejudice” discussions being revealed to the tribunal, which continues unaffected, as explained above.

The main difference between a “without prejudice” conversation and a “protected” conversation under the ERRA 13 is that a discussion can only be “without prejudice” if there is a pre-existing dispute between the parties. In other words, it is not possible to spring a “without prejudice” conversation on an employee entirely without warning. This is not the case with a “protected conversation”.

The obvious scope for abuse of protected conversations has led to a tightly drawn Acas Code of Practice. In practice, the restrictions imposed by the Code are likely to deter many employers from engaging in these conversations in reliance on the new law. 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. Although not a legal requirement, this practice may “help to progress settlement discussions”, says the Code.

If asked to participate in one of these discussions, members should ask to be accompanied by their rep. Employers will almost certainly make their own written note of the discussion. It can be a good idea to ask for a copy of any manuscript note as well as the typed version.

If an employee suspects they are being targeted for an automatically unfair or discriminatory reason, such as age, pregnancy or trade union-related activities, it is likely to be sensible to raise this early. The rules protecting a conversation from disclosure only apply to a straightforward unfair dismissal claim.

www.acas.org.uk/media/pdf/o/a/Settlement_agreements_%28the_Acas_Guide%29JULY2013.pdf