Protected Conversations Advice
What to do when your employer asks for a protected conversation
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Has your employer sought to have a “without prejudice” conversation with you or perhaps a “protected conversation” chat? What do these terms mean and how can you best deal with this situation?
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. This is called a protected conversation. That offer cannot later be revealed to an Employment Tribunal or used as evidence by an employee at an Employment Tribunal. Unlike “without prejudice” there is no requirement that there is a pre-existing dispute for this conversation to be protected. However, it is easier for these types of conversation to lose their protection. The protection will be lost if there is improper pressure e.g. if insufficient time is given to consider the offer, or the employee is told they will be dismissed. The protection also does not apply to discrimination, so if you believe the employer wants you to leave for a discriminatory reason you can refer to the conversation. In protected conversations, employers often say things that they shouldn’t, believing the protection to be wider than it is, and this can be used to your advantage.
What does Without Prejudice mean in employment law?
The “without prejudice” rule means that any communications made in a genuine attempt to settle a pre-existing dispute cannot be referred to in later court or employment tribunal proceedings between the parties. This is to enable parties to explore settlement without affecting their prospects in the underlying dispute. If a conversation is genuinely “without prejudice” then this protection will only be set aside in cases of unambiguous impropriety, which is a difficult test to meet and includes things such as blackmail and perjury. One point to be aware of though is that, in an employment context, employers often try to use “without prejudice” when there is no pre-existing dispute meaning the “without prejudice” rule will not apply. You can then refer to the conversation at a Tribunal, which can weaken your employers’ negotiating position.
What to do when your employer asks for a without prejudice or protected conversation?
It can be extremely intimidating and stressful when your employer asks to have a “without prejudice” or protected conversation. Your first instinct may well be to say no. Unfortunately, this will not make the issues your employer wants to raise with you go away. You are best to agree to this conversation taking place as your employer is most likely to make a mistake and say something wrong in this conversation if you agree to it straight away.
All you need to do in this conversation is listen to what your employer has to say and take careful note of what is said either in the meeting or immediately afterwards. It is best not to record this meeting without your employer’s knowledge. Your employer may ask you to respond in the meeting but you can just make it clear that it is a lot to take in and you will need to go away and consider it.
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Here’s some questions we often get regarding protected conversations:
Q: Do I have to agree to have a protected conversation?
A: No. However, we suggest that it would be best to attend and find out what your employer has to say. As mentioned above, you do not need to respond in the meeting, just say you want to go away and consider it, then drop us a line to discuss your options.
Q: Is the conversation protected if my employer doesn’t actually make me an offer?
A: No. In order to qualify for protection from admissibility, there has to be an actual offer or, at the very least, negotiations to end your employment on agreed terms.
Q: Is it just the offer I receive that is protected from being revealed to an Employment Tribunal, or the very fact that a protected conversation took place?
A: Protection from admissibility includes the very fact that a protected conversation took place.
Q: How long should I be given to decide whether to accept a protected offer?
A: You should be given a ‘reasonable’ amount of time. ACAS recommends a minimum period of 10 calendar days to consider formal written terms of a settlement agreement and to receive independent advice.
Q: What if I refuse to accept an offer made during a protected conversation?
A: Nothing should happen if you refuse to accept an offer, your employer is not allowed to punish you for it. In practice, however, the offer may have been made where your employer is suggesting poor performance, misconduct or your role being at risk of redundancy, and the reason the offer was made was to avoid having to carry out a performance management, disciplinary or redundancy process. One of those processes could result if an agreement is not reached on a way to avoid it.
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For more tailored advice on your situation, get in touch with us for a free initial conversation to discuss how we can best assist you. You will be contacted promptly by a partner who will consider your matter and advise you on what we can do for you and what our fees would be. In these types of cases, we can often represent you on a no-win-no-fee arrangement.
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Bloomsbury Square Employment Law is committed to providing partner-level advice to all.
These types of conversations generally only happen if the employer wants to pay you a sum of money to leave employment. It is a great opportunity to negotiate a departure that you are happy with. The law around protected conversations and “without prejudice” is complex and employers often get it wrong, which can be used to your advantage in negotiations. It is always best to have expert advice to help you achieve the best outcome for you. All of our lawyers have over 15 years of employment law experience and are partners in the firm. We have all dealt with these kinds of conversations countless times and can help you navigate your way through to an excellent result.
You will receive a swift and efficient personal service from an experienced practitioner who understands what you are going through.
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