One of the potential changes optioned was ‘Protected Conversations’ and in March the Government started consultation on this idea. At the end of June the Government confirmed that these conversations will be introduced into law and the Employment Rights Act 1996 will be amended to include these Conversations.
What does this mean?
- Protected conversations could be held by an employer with an Employee with a view to terminating their employment under a settlement agreement (so, not terminating their employment via a disciplinary process or redundancy).
- This conversation would not be able to be used as evidence if the employee then took the employer to Employment Tribunal for unfair dismissal.
The clause that will be added to the Employment Rights Act will say when determining an unfair dismissal claim, an Employment Tribunal “ may not take account of any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the Employee”.
More information about Protected Conversations
- They could be used by employers to discuss difficult issues like productivity and retirement without threat of legal action for unfair dismissal from the employee.
- If the Employee agreed to leave the employer would need to pay them an agreed settlement (the Government is expected to lay down in law the appropriate level of compensation) and give them appropriate notice.
- The Employee, on accepting the payment, would then be required to waive their right to subsequently claim for unfair dismissal at an Employment Tribunal.
- If the Employee refused the payment, the conversation would be classed as a ‘protected conversation’ (see above) and not be admissible at Employment Tribunal.
- Conversations would be ‘protected’ only in relation to unfair dismissal claims, an Employer could not rely on their protection in other claims such as discrimination or where the employee has ‘automatic’ unfair dismissal rights (see details of these here).
- The Tribunal will be able to take into account the conversation where something has been done or said by the employer that is “improper” (we expect that the definition of “improper” will involve many arguments at Tribunal; and of course for a Tribunal to determine whether or not the behaviour has been improper will mean they have to hear all about the protected conversation!).
As yet we don’t know when these conversations will come into law, but we’ll let you have more details as we know them!
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to us at The HR Kiosk (click here) – a Human Resources Consultancy for small businesses – you can retain us for as much time as you need.
Workline is supported by Employment Lawyers Goodman Derrick LLP. Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.