What you need to know before holding a ‘Protected Conversation’

25 Aug 2016 - And The Law Says
What you need to know before holding a ‘Protected Conversation’

In last month’s People Hour webinar we covered the concept of a pre-termination negotiation (also known as a ‘protected conversation’). We looked at the extent they are truly ‘protected’ from admissibility in proceedings. You can find the recording here.  We have also prepared a briefing which offers practical guidance in holding these type of conversations (Download the briefing here: What you need to know before holding a Protected Conversation).

Below are our ‘top tips’ to consider before embarking on a pre-termination negotiation.

1. Before embarking on a pre-termination negotiation, assess the risk profile of the employee:

  • Is there a risk of a claim other than unfair dismissal e.g. discrimination or a whistleblowing claim? If so, and there is not a ‘pre-existing’ dispute, proceed in the knowledge that any such claim would be admissible.
  • Is the employee likely to be difficult or litigious?  If this is the case, there may be a greater risk of arguments over admissibility. If the employee is open to the conversation, the risk in proceeding is clearly lower.

2. Consider scripting the first conversation, particularly if a manager is in charge of conducting it. Ensure the manager conducting the conversation is aware of the risks if they do not ‘stick to the script.

3. When the meeting commences, explain that you wish to speak to the employee on a “without prejudice” basis and to hold a ‘pre-termination negotiation. It should be explained that this means that the conversation should not be referred to in any court or tribunal process.

4. Set the context during the meeting, so the employee understands the reasons why the conversation is taking place.

5. Avoid any suggestion that dismissal is inevitable, but also to ensure that potential outcomes are highlighted.

6. Consider what is a reasonable period for consideration of the offer.  If 10 days (recommended by the ACAS Code) is not realistic, seek to agree a shorter period of time with the employee.

7. Emphasise the need for confidentiality in respect of the offer. Take a full note of the meeting and consider having a witness.

8. Following the meeting, a written offer of settlement should to be provided to the employee. Label it as being “without prejudice” and “subject to contract”, so the employee cannot refuse to accept any further terms within the settlement agreement.  If the offer is accepted, provide a settlement agreement.

9. If the employee is not interested in exploring settlement, back off and consider starting the formal procedure.

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To what extent are 'protected conversations' really protected?
In People Hour #15, Jo Tindall discusses ‘protected conversations’. The concept of a ‘protected conversation’ was introduced by the Government a few years ago to enable employers to carry out negotiations with employees with a view to terminating their employment, without the fear of those discussions coming before a court or tribunal. However, the limitations on ‘protected conversations’, for example the fact that they do not cover discrimination claims, mean that employers may not always be as protected as they think. This session is aimed at HR practitioners and senior managers To what extent are 'Protected Conversations' really protected? from gunnercooke llp on Vimeo.

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