Protected conversations: Panacea or problem?

Have you tried to have a frank conversation with an employee about their attitude or conduct at work with a suggestion that they leave with a financial incentive - only for it to backfire on you, and the employee then relying on that conversation in a tribunal claim as evidence that you are an unfair or unreasonable employer?

By Emma Swan, partner, and Nahum Eustaquio, paralegal, Knights.

Did you think that when the government introduced the concept of ‘protected conversations’ in July 2013 (under S111A of the Employment Rights Act 1996 (ERA) that you had a solution to the problem if you called it a ‘protected conversation’?

We want to shine the light on the problems with ‘protected conversations’ that we have found employers facing. The government introduced ‘protected conversations’ with the intention of reducing some of the workplace politics that often cause employers headaches in trying to resolve workplace disputes or issues of conduct and performance, to name a few.

This was to facilitate what is often the best solution for both parties: the option of agreeing the termination of the employee’s employment in exchange for the employee giving up their rights to bring employment tribunal proceedings, without the employee being able to use the discussions as evidence in a tribunal if an agreement wasn’t ultimately signed. But we are concerned that this is not the panacea that it was intended to be; there is actually a significant risk that employers will not get the protection they think they will get.

Firstly, the ‘protection’ only applies to ordinary unfair dismissal cases so any allegations of discrimination, whistleblowing or other automatically unfair reasons, for example, would mean that the conversation could be used as evidence in the tribunal against the employer.

Secondly, even in an ordinary unfair dismissal case, there are a wide number of opportunities for an employee to argue that the conversation should be allowed to be admitted as evidence. They can say that the employer said or did something that was improper or was connected with improper behaviour. Whilst an ACAS Code of Practice and Guidance Note provide examples of improper behaviour this isn’t exhaustive or legally binding on a tribunal, so there is a low hurdle for an employee’s lawyer to jump over to get the evidence before the tribunal and turn the evidence on its head to show that the employer was forcing an employee into a corner.

There are still ways of achieving ‘off the record’ chats with employees by having a “without prejudice” discussion but these need to be set up properly with a dispute already existing. It is crucial that the correct steps are taken in terminating the employment relationship and specific advice should be taken on a case-by-case basis. If you are planning to address any issues you have with employees and want to look at reducing risk to the business, then make sure that you handle the situation correctly or you may find yourself having an un-protected conversation!