The concept of “protected conversations” was introduced in 2013 by the addition of section 111A to the Employment Rights Act 1996, to enable pre-termination negotiations to take place discretely - which could not later be used in evidence in an Employment Tribunal against either of the parties to the conversation.
This was necessary because “without prejudice” privilege does not apply to situations where there is no existing dispute between the employer and employee.
What are the requirements?
The conversation must involve discussions with a view to terminating the employment on agreed terms. There has not been much case law on this, but two cases in the London South Employment Tribunal (in one of which Hewitson Moorhead acted) suggest that there must be an offer made or, at the very least, the employer must demonstrate a genuine desire to achieve a settlement. In practice, that is likely to mean being willing, and in a position, to negotiate at that meeting. Any “improper behaviour” by the employer, such as a failure to give the employee any choice (eg confirming that the employment will end in any event), or a reasonable time to consider, may also lead to the conversation being admitted in evidence.
Has it worked?
It does not appear to have been a great success, perhaps partly as a result of the possible complications discussed above. The major problem, however, is that these discussions are only inadmissible in unfair dismissal claims. Such claims are often accompanied by a discrimination claim on the basis of sex, race, disability, religion or belief etc, in which the conversation is admissible. It is obviously unsatisfactory to have the conversation in evidence, but for the Employment Tribunal to try to disregard it in respect of the unfair dismissal part of the claim. The employer cannot know whether there will be a discrimination claim at the time the conversation takes place, and It would not be beyond the wit of a cynical Claimant to tack on a discrimination claim in order to ensure that the conversation is admitted in evidence.
What can the employer do?
Such conversations still have their uses as, in many cases, they will lead to agreed severance terms (often tied up in a Settlement Agreement) saving time, cost and unpleasantness. However, they must be approached with care and with pre-planning. It is prudent, in such circumstances, to take advice from one of our employment solicitors before taking this step.
For more information pleast visit our Employment Services page or contact Edward Wheen on 020 7400 6574 or click here to email Edward.