3 things you need to know about protected conversations

3 things you need to know about protected conversations

You may have been asked by your employer for a protected conversation. This may be unexpected.

(1)  What is a protected conversation?

Your employer can have an “off the record” conversation with you regarding the termination of your employment in the knowledge that such a conversation is in certain circumstances “protected”. 

Any offer your employer makes to you relating to the termination of your employment will normally be recorded in a settlement agreement. The pre-termination negotiations and terms of the settlement are protected in so far as they cannot be used by you in any subsequent employment tribunal claim for unfair dismissal under sections 111A of the Employment Rights Act 1996 (ERA).

(2)  What claims will not be covered by a protected conversation?

Certain protected conversations are not covered by section 111A of the ERA and these relate to complaints of:

• claims that relate to an automatic unfair reason for dismissal, such as, whistleblowing, union membership or asserting a statutory right
• claims made on grounds other than unfair dismissal (eg discrimination, harassment, victimisation or other behaviour prohibited by the Equality Act 2010)
• claims relating to breach of contract or wrongful dismissal.

Therefore, if your claim relates to dismissal it is essential that is properly pleaded to show that it is not one of ‘ordinary’ unfair dismissal but ‘automatically’ unfair dismissal. If you fail to do this, you will run the risk that a tribunal will exclude all matters relating to pre-termination negotiations. However, if there is an ongoing dispute between you and your employer then certain conversations may still be covered by what is called the “without prejudice” rule.

(3)  When will a protected conversation lose its protection?

The Acas Code of Practice – Settlement Agreements provides a non-exhaustive list of improper behaviour, which means that protected conversation will lose its protection and includes:

• all forms of harassment, bullying and intimidation, including the use of offensive words or aggressive behaviour
• physical assault or the threat of physical assault and other criminal behaviour
• all forms of victimisation (ie have done a protected act in relation to the Equality Act 2010)
• discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership
• putting undue pressure on a party (eg an employer saying before any form of disciplinary process has begun that if a settlement proposal is rejected then the employee will be dismissed).

If there is improper behaviour by your employer, then anything said or done as part of the pre-termination negotiations may be admissible as evidence, providing the tribunal considers it just to do so. In the case of Harrison v Aryman Limited, where there is a dispute about what was discussed during a protected conversation, a tribunal must be satisfied that whatever behaviour did occur meets the legal concept of improper behaviour. If so, then a tribunal will consider the extent, if any, to which it is just to permit reference to the pre-termination negotiations to be admitted.

For example, if you bring a claim for constructive unfair dismissal and seek to rely on your employer’s conduct, including pre-termination negotiations, to show that this amounted to a breach of the implied term of trust and confidence, it is essential that this conduct is clearly pleaded, and the tribunal is aware of this before deciding to either admit or to exclude it.

Comment

Whether conduct during a protected conversation will amount to improper behaviour will not always be obvious or what appears to be obvious may not be admissible. Therefore, it is essential proper legal advice is sought before embarking on a tribunal claim.