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Chris Hadrill, the partner in the employment team at Redmans, looks at “protected conversations”: what do they mean, and when are they used?

Protected conversations: the history

in July 2013, the Conservative Government introduced new legislation (in section 111A(1) of the Employment Rights Act 1996 (ERA 1996)) to operate alongside the without prejudice principle – this new legislation introduced the concept of “pre-termination negotiations” (also known as “protected conversations”). The purpose of the legislation was to allow employees and employers to have “frank conversations” about termination at either’s request (in practice, these conversations are normally started by employers, but they can be and are initiated by employees); the main consequence of the legislation was to make it easier for employers to initiate settlement conversations with employees with less risk of those conversations being admissible in subsequent tribunal proceedings.

Protected conversations: what do they mean in practice?

In practice if an employee is approached by their employer and told that they are going to have a “protected conversation” then this is generally a prelude to the employee being told that they are going to be offered a settlement agreement, with a view to their employment terminating in the near future. There will then normally be a discussion between the employer and the employee regarding the ‘severance package’ to be offered to the employee, and the employee will then normally be provided with a copy of a settlement agreement. The employee will also be told that they should obtain independent legal advice from a legal adviser (such as a solicitor).

The effect of a “protected conversation” will be, for the purposes of unfair dismissal claims, to render the fact and contents of a “protected conversation” inadmissible unless there has been “improper behaviour” on the employer’s part (see our analysis of section 111A Employment Rights Act 1996 here).

When are protected conversations used?

“Protected conversations” are generally used where the employer wants to terminate the employee’s employment (for example, in a situation where the employee is being accused of misconduct or the employer thinks they are underperforming).

There are various reason why employers use “protected conversations” (and settlement agreements in general), but the principal reasons are normally: 1) in order to effect a quick and reasonably ‘painless’ exit, without protracted disciplinary or capability processes being undertaken; and 2) in order to limit the employer’s liability to the employee (i.e. to avoid a claim being brought against it).

What should you do if your employer holds a protected conversation with you?

If your employer has asked you to participate in a “protected conversation” with it, or you have been offered a settlement agreement, then it is a good idea to get in touch immediately with a specialist legal adviser (such as an employment solicitor) in order to obtain independent legal advice on your situation – it is normally important to move quickly to negotiate the terms of the agreement in order to optimize the chances of success of negotiation.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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Testimonials

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Katelyn

The solicitor communicated well with me and made sure I understood everything. He did everything needed for my settlement agreement and tried to get the wording changed in my favour too.

Posted 3 days ago

Anonymous

Redmans provided excellent services

Posted 3 days ago

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Excellent service

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Posted 3 days ago

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I very much appreciated the help provided by Redmans in the settlement agreement agreed with my former employer.

Posted 4 days ago

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Posted 2 weeks ago

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Posted 2 weeks ago

Anonymous

Immediate response to my initial enquiry. Very clear throughout the whole process and thorough and great communication which worked really well during quite a stressful time. Chris Hadrill was extremely helpful and made me feel at ease.

Posted 3 months ago

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I received a very professional service from Chris. The advice given really helped to leave me comfortable to sign the settlement agreement following my redundancy. Would be happy to recommend your services to others.

Posted 3 months ago

Anonymous

Excellent service from initial contact to deliverables.

Posted 4 months ago

Virginia K

Yes, Chris Hadrill answered all my questions and I feel more confident with my current situation

Posted 4 months ago

Anonymous

Chris Hadrill was referred to me my a friend of mine. I found the service to be efficient, quick and like Chris's direct approach to my work. Well done and thank you Chris!

Posted 4 months ago

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Very prompt & structured service that helped put my mind at rest at a difficult time

Posted 4 months ago

Anonymous

I have found Redmans to be very helpful, diligant and thoroughly professional when dealing with them, plus they gone that extra mile for me !

Posted 4 months ago

Anonymous

Thank you to Chris Hadrill at Redmans for his assistance in settling my case. I contacted him at the very last minute and he was happy to help me and managed to get everything done on time and in a very professional manner. I will definitely be happy to work with him again .

Posted 4 months ago

Redman's provided excellent legal employment advice for me during a difficult time in my employment. Chris was my lawyer, super efficient, quick, reliable and clearly very experienced in the matter. Could not ask for a better law firm to deal with your query if you are in need of some help. Would definitely use them again in the future. Highly recommending Chris.

Posted 8 months ago

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Posted 8 months ago

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At Redmans the solicitor that was dealing with me was Chris. He dealt with my situation smoothly with clear guidance and explanation

Posted 8 months ago

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Clear, concise advice and guidance delivered by an experienced and very capable solicitor, within the timelines required

Posted 9 months ago