Protected Conversations
Get advice straight away
If you are reading this page, then chances are you have either had a protected conversation or are about to go to a meeting where one may take place.
In both circumstances, we can offer you a free consultation and you will be prioritised given the urgent nature of your situation, so our strongest advice to you is to get in touch with us and one of our partners will advise you on your next steps.
If you are in the situation
If you don’t read any further on this page, please just take onboard this one, vital piece of advice for anybody attending a protected conversation meeting:
Say very little, listen a lot, and take extensive notes. Be polite but give no indication whatsoever as to your decision or your feelings about having been made an offer. Then contact us and we will help you.
What is a Protected Conversation?
Section 111A of the Employment Rights Act 1996 allows an employer to make an employee an offer to terminate their employment, regardless of the circumstances. That offer cannot later be revealed to an Employment Tribunal or used as evidence by an employee at an Employment Tribunal, or in any internal proceedings such as grievance hearings. Importantly, a protected conversation, or the offer made to the employee, cannot be used to claim a beach of contract in a constructive dismissal case.
The employee will have around ten days to accept or reject the offer.
Often the employer does not tell the employee of the nature of a protected conversation before they attend, so the employee is not expecting the meeting. This is an element of surprise that is not unlawful, but it does place the employer at an advantage.
When is a Protective Conversation not Protected?
The simple answer to this is when the circumstances of the offer are improper, or the employee is subject to improper pressure to accept the offer to terminate their employment. This could involve improper pressure being placed upon the employee, for example where the employee is informed that unless they take the offer made to them, they will be dismissed regardless; or it could be that the offer itself is because of discriminatory reasons.
Another tactic that could be argued is improper pressure is giving the employee a very short time to take the decision.
In circumstances where there is evidence that the employer has acted improperly, the employee can argue that the protected conversation and the offer made to them, are not protected and can be used in evidence against the employer. This puts the employer at a considerable disadvantage in negotiations and any litigation that follows.
Another mistake employers commonly make is assuming that all their actions surrounding the making of the offer of termination are protected. This is a fallacy. Any action that is taken by the employer that is ancillary to the offer is potentially able to be used in evidence. For example, if the employer unilaterally sends the employee home and removes their access to systems, that is an action taken by the employer that is outside the protections afforded by the law and can be used by an employee as evidence of breach of contract, or more.
What happens after a Protected Conversation?
In usual circumstances, the employee instructs a solicitor and there is then a period of negotiation while terms are agreed, after which the employee leaves their employment with an acceptable offer.
Sometimes, when the employee has strong claims or the employer has acted improperly, the protected conversation can bring to a head issues that lead to stronger measures being taken by the employee, including the employee bringing a grievance or even Employment Tribunal proceedings against the employer.
What do I do if I have had a Protected Conversation?
If you have had a protected conversation, then you need to take legal advice, so contact us and we will provide you with a free consultation and advise you of the strength of your case, whether it is advisable to accept the offer, or whether there is either scope for negotiation or grounds to strongly resist your employer’s actions and bring proceedings in the Employment Tribunal.
