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Protected Conversations. Off the record conversations – where is the protection?

Posted on 22nd February, 2019

Protected conversations, used correctly, give employers an opportunity to have a practical conversation with employees about alternatives to potential dismissal in the context of ongoing or in some cases anticipated disciplinary proceedings.

A recent article got me thinking…

Termination of employment by mutual agreement might be something which benefits both parties. However, it cannot possibly occur where only one party wants it to happen. A settlement, compromise, or non-disclosure agreement, however you term it, cannot be imposed.

When section 111A of the Employment Rights Act 1996 which covers confidentiality of pre-termination negotiations came into force in 2013, it was not intended to provide a shortcut for employers to threaten employees with dismissal as an alternative to entering into a settlement agreement. The provision renders evidence of such negotiations inadmissible in unfair dismissal proceedings. However, to avoid its unfair exploitation, employment tribunals can disapply the prohibition where anything said or done in the course of negotiation is, in the tribunal’s opinion, improper.

Improper behaviour can include the following:

  • harassment, bullying or intimidation, for example through the use of offensive words or aggressive behaviour;
  • physical assault, or the threat of physical assault, and other criminal behaviour
  • all forms of victimisation
  • discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership; and
  • putting undue pressure on a part for example through:

→ not giving reasonable time for consideration

→ an employer saying before any form of disciplinary process has begun that if a settlement proposal is                           rejected then the employee will be dismissed; or

→ an employee threatening to undermine an organisation’s public reputation if the organisation does                             not sign the agreement, other than in protected disclosure (whistleblowing) circumstances.

So, clearly, protected conversations, or some other form of without prejudice communication, are not an excuse to dispense with formal disciplinary proceedings, nor does it allow an employee to hold employers to ransom.

An employer considering engaging in a protected conversation with an employee should first have grounds to initiate or, better still, continue formal proceedings in relation to a conduct or capability issue. If underperformance is the concern, remember that formal proceedings will in many cases take weeks if not months before there will be grounds for a fair capability dismissal – targets must be realistic and warnings relevant. Where conduct is the issue, rarely other than in circumstances of gross misconduct will it reasonable to dismiss an employee without some lesser sanction having previously been applied (and even then, dismissal should not be automatic).

The workplace is not a police state or the Wild West; employees should not fear a tap on the shoulder or being corralled. Our employment laws aim to strike a balance between allowing employers to make business decisions and protecting the fundamental rights of workers. Employers and employees must both accept that protected conversations can only take place set against this background.

For more information onthe issues raised in the above article of for any other employment law advice please contact a member of our Employment Law team. With offices in Teesside and Newcastle upon Tyne we are well placed to help clients in any area of the North East including Stockton on Tees, Middlesbrough, Darlington, Redcar, Peterlee, Durham, Sunderland, Gateshead, Newcastle and Northumberland.

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