Dispute prevention – What is a “protected conversation”?

Common law allows for Without Prejudice conversations to be had once a dispute has arisen. Such conversations and their content are protected in the sense that they are not then admissible in evidence should the dispute proceed to a Court or Tribunal Hearing.

However, as this principle only applies once a dispute has already occurred it will not always be sufficient in the employment arena, especially with employers who want to proactively prevent disputes from occurring.

Since 29 July 2013, the law has expanded in this area with the introduction of “Protected Conversations” allowing employers to have “off the record” conversations with their employees regarding the termination of their employment without a dispute having arisen. The law on protected conversations is contained in s.111A of the Employment Rights Act 1996.

However, as with all areas of law there are limitations employers need to be aware of which prevent protected conversations being the ultimate remedy, for example:

• The statute only provides confidentiality in relation to unfair dismissal claims where the discussions are held with a view to terminating the employment on agreed terms. This provision does not relate to claims of automatically unfair dismissal e.g. claims relating to pregnancy or whistleblowing. Should a claim of this nature arise the conversation could be admitted in evidence.
• Therefore, your conversation is not protected and may be admissible in evidence should an alternative claim such as discrimination be brought. If there is any risk of alternative claims being pursued you should be very careful when having a conversation with your employee and be certain not to admit liability or accept any conduct. If you are uncertain it is best to seek legal advice prior to acting.
• Any improper behaviour may allow a Tribunal to later adduce evidence of this conversation even if the provisions outlined within the first bullet point are met. Improper behaviour will generally include behaviour that would be regarded as ‘unambiguous impropriety’ under the without prejudice rule i.e. fraud or blackmail. It could also be wider and include unreasonably short deadlines for the employee to accept the offer or threaten dismissal if the offer is not accepted
• The ACAS Code of Practice needs to be followed. Whilst not a legal requirement, it is good practice and failure to do so may prejudice your case and affect any awards made in a Tribunal.

In order to ensure your protected conversation is protected, you must confirm with the employee that your conversation is being had “Without Prejudice” and any correspondence regarding the proposed termination should be marked accordingly.

Furthermore, if you have any concerns that other potential claims may exist, you should seek legal advice prior to your conversations.

For more information please contact any of the Employment Team on 01707 387075.