Protected conversations at work – a quick guide for employees

This guide covers:

1. What is a protected conversation?
2. How do you have a protected conversation?
3. When are protected conversations held?
4. How should an employer behave in a protected conversation?
5. What constitutes ‘improper behaviour’?
6. Can an employee ask for a protected conversation?
7. What should you do if you’re asked to have a protected conversation?

What is a protected conversation?

A protected conversation (also known as a “pre-termination negotiation” is a legal ‘off the record’ discussion that you can have with your employer regarding concerns that your employer may have about your continued employment (for example, regarding your performance) and any settlement package that they are prepared to offer you. Essentially, it allows a ‘full and frank’ chat between employer and employee and means that the contents of any conversation (in certain circumstances) are not admissible for the purposes of an Employment Tribunal claim (i.e. neither party can use it as evidence).

It is unlikely that a “protected conversation” will in fact be “protected” where no settlement offer is made to the employee. There therefore needs to be two elements present to have a “protected conversation”:

1. A discussion regarding concerns that the employer has about the employee (whether relating to conduct, performance, or otherwise);
2. A settlement offer made by employer to employee

How do you have a protected conversation?

For an employer and an employee to have a protected conversation there need not be an existing dispute between them – the protected conversation can therefore often come as a surprise to an employee.

The employer also does not have to schedule a formal protected conversation with you – it could, for example, be a simple informal affair where your line manager takes you to one side and has a discussion with you (informing you, for example, that they think that you are underperforming, that they want you to leave your employment, and that they will offer you a settlement package.

There are of course rules to what circumstances a protected conversation can be held in:

• Where a protected conversation can be held: where the employer has concerns regarding your employment which could result in an unfair dismissal claim (if you are dismissed)
• Where a protected conversation cannot be held: where there are allegations of discrimination, whistleblowing, or breach of contract

When are protected conversations held?

Protected conversations are held when an employer wants to have a ‘full and frank’ off-the-record chat with an employee about a potential issue, and to offer a settlement package which will result in the termination of employment.

How should the employer behave in a protected conversation?

Your employer must act properly when holding a protected conversation (and, conversely, must not act ‘improperly’). If an employer engages in improper behaviour in a protected conversation then that conversation may no longer be ‘protected’ (and therefore may be admissible for the purposes of an unfair dismissal claim – this means that it can be considered by an Employment Judge and used as evidence in a claim for unfair dismissal or constructive dismissal).

What constitutes ‘improper behaviour’?

Examples of improper behaviour would include (please note that this is not an exhaustive list):

1. Any form of harassment, bullying and intimidation;
2. Physical assault or the threat of physical assault;
3. All forms of victimisation and discrimination;
4. Putting undue pressure on a party (for example, not giving them a reasonable time in which to consider the terms of a settlement agreement)

There is, however, no particular guidance on what constitutes “improper behaviour” and whether an employer’s behaviour has been improper will depend on the facts and circumstances of each case.

Examples of what is unlikely to be improper include:

1. Setting out in a neutral manner the reasons that have led to the proposed settlement agreement; and
2. Factually stating the alternatives if agreement cannot be reached, including the possibility of disciplinary action if relevant.

The ACAS Guide on Settlement Agreements includes a number of useful examples of what might be considered to be improper behaviour.

What constitutes improper behaviour was considered by the Employment Tribunal in Crespigny v Information Security Forum Ltd ET/2300316/14 (our analysis of the case can be found here).

Can an employee ask for a protected conversation?

The simple answer to this is “yes” – there is nothing in the legislation which states that only an employer can ask to have a protected conversation with an employee. However, before you ask your employer for a protected conversation it’s recommended that you set out in writing to them what your concerns are (for example, via a grievance). Doing this will strengthen your case to negotiate an ex-gratia settlement payment.

Once you have formally submitted your concerns then you will probably want to put a ‘without prejudice’ offer forward to your employer (rather than have a protected conversation with them).

What should you do if you’re asked to have a protected conversation?

If you’re asked by your employer to have a protected conversation then there is normally no harm in agreeing to have a chat with them – there’s no risk in hearing what your employer has to say and the conversation may end up being advantageous to you (particularly if you’re not really happy at the business).

When you’re having the protected conversation we recommend the following:

1. Take good notes of what your employer says
2. Don’t feel like you have to respond to what your employer says (whether it’s relating to a settlement offer or any criticism of your conduct or performance) – say to them that you’ll think about what they’ve said and come back to them
3. Get clear details of what you are being offered – check the sums that your employer is willing to pay, whether you will be getting a reference, what the termination date will be etc. (we have a guide on settlement agreements which you can read here)
4. Clarify with your employer what you will receive if you don’t accept the settlement agreement – if your employer says that they will dismiss you then you can use this to your advantage (as the conversation will no longer be protected and you can try and use this to negotiate an increased offer)
5. Take legal advice as soon as you are able – your employer will normally pay for the cost of this under the settlement agreement offered and it will allow you to obtain an objective third-party view on whether what you are being offer is reasonable