colleagues whispering

What is a protected conversation and why is it useful?

It is an ‘off the record’ chat about an employee’s employment, commonly used when there are problems and management is exploring the possibility of the employee leaving the company. If done correctly, then the employee cannot use the protected conversation in any subsequent tribunal proceedings for unfair dismissal.

When might an employer consider using a protected conversation?

Many employers find exiting an employee when the relationship may be breaking down quite difficult and are particularly worried where the employee has a senior position, has been with the company for many years and has established connections with clients, colleagues and suppliers.

For employees with more than two years’ service with the company, there is the possibility they could claim unfair dismissal if their employment is terminated without following a full procedure.

Even when there is a fair reason to consider terminating employment, such as an employee performing poorly or misbehaving, there would still be the requirement for the employer to follow the capability or disciplinary procedure, as appropriate to the circumstances, for longer service employees. Performance management can take a large amount of time and disciplinary action can be stressful for both parties.

In some situations, there might be personal friendships or family connections involved which mean that it is important for the outgoing employee to feel that they have been fairly treated and are able to leave the business with their dignity and reputation intact.

Where it is important to preserve a harmonious relationship for both parties and ensure a clean and swift exit from the business, company Directors may wish to consider exploring the possibility of having a ‘protected conversation’ with the employee. This allows both parties to explore terms on which an employee may leave a business.

If agreement as to these terms cannot be reached, then the fact that the conversation has taken place cannot be used in any subsequent employment tribunal proceedings for unfair dismissal.  It is important to realise that the protected conversation cannot be relied upon if there has been any ‘improper behaviour.’

The employer cannot pressurise the employee to agree to the settlement terms and must not make it look as if a decision has been taken where no agreement has been reached. For example, where there has been a protected conversation and discussions are ongoing regarding settlement terms but no agreement has been reached, the employer must not ask the employee to stay at home for no reason (they could book annual leave,) or to return all company equipment/property. Asking an employee to return all company property makes it appear that the employee is already leaving the business.

When can’t an employer use a protected conversation?

It is important for companies to be aware that protected conversations cannot be used where there is any allegation of harassment, victimisation or discrimination, or where there a case for automatically unfair dismissal (such as where the employee has asserted a statutory right, whistleblown or alleged there has been a breach of contract.)

Practical consideration for using a protected conversation

  • The ACAS Guidance does suggest that employees should be given the opportunity to be accompanied to a protected conversation by a work colleague or trade union representative, so consider whether the company will allow this
  • Consider who should have the conversation with the employee – ideally it would be a senior member of staff
  • Ensure they are trained and, if required, are supported by a note taker or HR
  • Ensure the employee is given sufficient time to consider the offer and not pressurised or threatened – a reasonable timeframe may be up to ten days
  • Where they agree, ensure the settlement offer is put in writing
  • In order for the settlement agreement to be effective, the employee must receive independent legal advice
  • There is an expectation (it is not a legal requirement) that the company will make a contribution to the cost of the employee receiving independent legal advice – a reasonable contribution may be up to £350 + VAT.

If you are experiencing any issues or would like to find out more about protected conversations, when it is appropriate to use them and how they may help your company, please do not hesitate to contact the HR Consultancy Team for support and guidance.

* Please note this article is for information only and does not constitute legal advice. In the event you wish to embark on a protected conversation with any employee please contact the HR Consultancy Team with full details of the case and seek advice prior to taking any action.