Business clinic: Off the record conversations

Initiating a discussion with an employee about terminating their employment should be approached with great care.

James Bellamy Marsden RawsthornBy James Bellamy, Marsden Rawsthorn.

Prior to the 29th July 2013, the only “off the record” conversations employers could have with employees was if there was an existing dispute. This, in itself, created problems establishing what constituted an “existing dispute”.

However, from 29th July 2013, the government empowered employers by allowing them the freedom to have frank conversations without the fear of those conversations being used against them. Employers can now discuss termination without there being an existing dispute although it must be done with caution, there are limitations which include:
  1. It only applies to claims of unfair dismissal. Automatically unfair dismissal, discrimination or breach of contract claims will not be covered. So take care of what has gone on before and how you deal with the employee;
  2. If the employer acts “improperly” they will not be able to rely on confidentiality and the conversation will be admissible. There is a list of what constitutes improper behaviour in the ACAS Code but these definitions will still probably be fleshed out over time;
  3. If a grievance is raised about the conversation then it will have to be dealt with. An employee then may resign as a result of either the grievance not being investigated or not dealt with appropriately which may raise the question of whether the conversation could be used in any subsequent constructive dismissal claim.
In summary, employers need to act with caution. When involved in discussions about termination ensure to deal with employees fairly, allow them to be accompanied at internal meetings, always follow and check the ACAS code and make sure everything is documented.