Protected conversations: what do they mean and when are they used?

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.