Protected Conversations: The Employer’s Secret Weapon?

  1. What is a ‘Protected Conversation’?

So-called Protected Conversations came into being in July 2013 when the UK government introduced various employer-friendly rules, including the Code of Practice on Disciplinary and Grievance Procedures (ACAS Code) pre-claim conciliation protocol and the ill-fated tribunal fees regime.

Technically known as ‘pre-termination negotiations’, Protected Conversations are a mechanism whereby an employer can have a conversation ‘without prejudice’ with an employee in which they suggest that their employment be ended by mutual agreement by means of a document called a ‘Settlement Agreement’.

  1. What’s not to love?

It has taken a considerable amount of time for employers to feel sure-footed on this particular mechanism for ridding themselves of unwanted staff members.

First, the conversation only protects an employer against a claim of unfair dismissal; they thus remain vulnerable to other claims if an employee is unhappy with what is proposed.

Secondly, it is necessary to take a scripted approach to the conversation to ensure that it is, in fact, protected. If the ACAS Code is not followed, the conversation may not have been protected after all, and an unwitting employer is left susceptible to a claim of constructive unfair dismissal.

  1. They can be helpful in the workplace

Protected Conversations can be a useful tool in the workplace. While clear-cut cases of gross misconduct will generally still be dealt with by means of a disciplinary process, many workplace disputes and difficulties cannot be easily pigeonholed and can lead to vast amounts of management time being devoted to a situation that simply needs to be dealt with. Disgruntled employees are not good for business.

Protected Conversations can work well when an employer knows that a financial offer can be made which the employee is likely to accept. Protected Conversations may also work where there is an impasse between the employer and the employee, or there is a fairly serious breakdown in the employer/employee relationship.

  1. Show me the money…

Moving on to the construction of a Settlement Agreement, generally, employers will seek a rational basis for calculating a potential financial package, for example, statutory redundancy pay together with pay in lieu of notice (PILON).

Employers must factor in the condition that an employee is required to obtain independent advice on the terms and effect of the document before signing it, and a small contribution towards such legal costs may be needed. This is one of the conditions of a valid Settlement Agreement.

  1. Conclusion

Employers should not be afraid to have a Protected Conversation in the right circumstances. While they have to be managed carefully, they can provide a very effective shortcut to difficult workplace situations.

Get in touch with our international employment law team if we can be of any assistance.

This orientation does not and cannot replace legal advice. Rooney Nimmo does not accept any liability for any loss arising out of or in connection with this orientation, in contract, delict, tort, by statute or otherwise.

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