FAQs: Protected Conversations – and when they aren’t protected
23 November 2019
The concept of a ‘protected conversation’ is something that we are quite often asked about, so we thought it would be useful to answer some FAQs about it, as well as bringing you up to date on a recent case decision.
What is a ‘protected conversation’?
Despite what a lot of people seem to think, ‘protected conversation’ is not a legal term. It is however commonly used to describe a conversation between an employer and an employee which takes place ‘off the record’ under the provisions of section 111A of the Employment Rights Act. What section 111A says is that provided the rules are followed, the employee will not be able to refer to that conversation in any subsequent unfair dismissal claim. This is the ‘protection’ given to the conversation.
When do employers tend to have protected conversations?
There are all sorts of situations where an employer might choose to have a protected conversation with an employee. Usually it where the employer feels that it may be a good idea to part company with the employee quickly and amicably, as an alternative to following another, longer type of process. Normally the employer’s offer will be conditional upon the employee signing a Settlement Agreement to confirm they will not bring any claims.
What process should be followed for a protected conversation?
While there are some guidelines in the ACAS Code of Practice on Settlement Agreements, these are not legally binding. However, it is important to remember that often a large part of agreeing a Settlement Agreement comes down to communication and how things are presented to the employee – particularly in situations where it could be contentious.
We find it is usually best to first mention the possibility of a Settlement Agreement at a face to face meeting if possible. The employee should be given a reasonable period of time to consider the offer – the ACAS Code of Practice states that this should be a minimum of 10 calendar days.
There is no legal right to be accompanied to any meetings to discuss a Settlement Agreement, and many employers may be concerned about confidentiality, but there may be situations where offering a companion may be helpful to give the employee reassurance.
What are the risks employers need to be aware of when they have a protected conversation?
First, it is really important to be aware of the limits on the protection section 111A can give. One of the main things to bear in mind is that the protection only applies to ‘normal’ unfair dismissal claims. This means that if your employee might have a potential claim for something like discrimination, whistleblowing or automatically unfair dismissal, they may be able to refer to the contents of your conversation with them as part of their claim.
This will apply regardless of whether such a claim actually succeeds. For this reason, we strongly recommend that you seek legal advice before you have a protected conversation.
Second, if you behave ‘improperly’ when offering an employee a Settlement Agreement then the protection will not apply and the employee will be able to use the conversation as evidence in an unfair dismissal claim. The Tribunal would need to consider whether something improper has taken place, and then if so, how much of the discussions it would be fair to refer to.
These two issues were dealt with in the recent case of Harrison v Aryman Ltd. Ms Harrison claimed that her employer had given her a letter suggesting that her employment would be brought to an end. She believed this was because at the time, she had recently announced that she was pregnant with her third child. The employer’s position was that the letter was because they had expressed concerns about her performance and conduct. The parties did not reach agreement, and some time later Ms Harrison resigned and brought claims including discrimination and unfair dismissal (including automatic unfair dismissal on the grounds of pregnancy). She sought to rely on the letter, but as so much time had gone by, the Employment Tribunal felt that she had lost the ability to do so.
The case then proceeded to the Employment Appeal Tribunal (EAT) in order to consider the question of whether Ms Harrison could rely on the letter to support her claims. Ms Harrison appealed to the Employment Appeal Tribunal (EAT) on the basis that she felt the Tribunal had not properly considered whether she could rely on the letter from her employer. In particular, she argued that because her claim was for automatic unfair dismissal, the letter should not be protected. She also sought to argue that her employer had behaved improperly and therefore that the letter should be admissible on that basis too.
The EAT accepted that Ms Harrison was claiming automatic unfair dismissal. As the wording of s111A specifically says that the protection does not apply if “according to the claimant’s case” the dismissal was automatically unfair, the EAT decided that the letter was admissible.
The EAT then considered whether the employer had behaved improperly. For this, the test involves looking at more than just the employee’s argument – they had to look at what had actually happened. They specifically referred to the ACAS Code and identified that according to the Code, discrimination would amount to improper behaviour. As Ms Harrison was alleging discrimination, the EAT therefore sent the case back to the Tribunal for a decision on whether on the facts, the employer’s behaviour had been improper.
What does ‘improper behaviour’ mean?
Improper behaviour is not defined in the legislation, so it is something for each individual Tribunal to decide. However, there is some guidance in case law and in the ACAS Code, and the following are likely to amount to improper behaviour:
- Any bullying, harassment, victimisation or intimidation
- Assault or the threat of assault, or other criminal behaviour
- Discrimination on the basis of any protected characteristic (sex, race, disability, age, religious or philosophical belief, sexual orientation, transgender status, pregnancy and maternity, marriage/civil partnership)
- Any undue pressure that is put on the employee. This could include not giving the employee a reasonable amount of time for them to consider the offer, or threatening that dismissal will happen if they don’t accept (it is however fine to say that the disciplinary or capability procedure may be invoked, if that is relevant – the wording of this can be crucial).
Top tips for having a protected conversation
- Prepare beforehand – a protected conversation is not something to rush into. As we’ve said above, it is definitely best to take advice first to make sure you are aware of the risks in each particular case, as well as how much to offer to the employee.
- Make sure that you tell the employee that the conversation is ‘without prejudice and subject to contract’. As we have covered in our previous article here, this is not necessarily watertight, but it is better to say it than not!
- Confirm it in writing – often these kinds of discussions will come as a shock to an employee and they won’t absorb all of what you have said to them. If you give them a letter (and potentially also a copy of a draft Settlement Agreement) then they can take it away to consider it, and also start to get the legal advice they need in order for the Settlement Agreement to be binding.
- Make clear what the deadline for acceptance is and who they should contact if they or their solicitor have any queries about the offer you are making. You should also make clear what happens in the meantime, such as whether they are expected to attend work and whether they will be paid.
If you are thinking of having a protected conversation with an employee, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].