An employer’s guide to protected conversations

When dealing with a difficult dispute at work, protected conversations can be a positive way of resolving things between an employer and an employee.

In this blog, our employment lawyers explain what a protected conversation is, how they work and how they can be beneficial in resolving workplace disputes.

What is a protected conversation?

A protected conversation is a discussion between an employer and an employee where they discuss ending the employment on agreed terms.

Protected conversations do not have to be in person; they can be in a letter, via email, on the telephone or by video call.

A protected conversation is ‘off the record’. This means that the discussion will not be able to be used in any future tribunal proceedings, including an unfair dismissal claim or a constructive dismissal claim.

What’s the difference between a protected conversation and a without-prejudice discussion?

Both protected conversations and without-prejudice discussions can be useful ways of resolving workplace disputes and/or bringing an end to employment without conflict.

The main difference between these types of discussions is that without-prejudice discussions are only protected when there is an existing dispute, such as a grievance.

For example, if an employee is not performing, despite attempts to manage and improve this, the employer might decide to have an off-the-record meeting with them to discuss ending their employment (and most of the time, the employee will be expecting this outcome). This would be classed as a protected conversation.

If an employee has a dispute, such as a grievance, an employer can request a without-prejudice meeting where both parties agree to part ways.

When can I ask for a protected conversation?

There are many reasons or situations where it might be appropriate to request a protected conversation with an employee. These include:

• Where an employer wants to avoid stress or added stress on the employee by going through the internal dismissal process.
• Where an employer considers a protected conversation a better use of time and resources than going through the performance or disciplinary process.
• To reach a settlement outside of an Employment Tribunal.

Requirements for protected conversations

It is important to remember that, while protected conversations can be a beneficial and sometimes simpler way of bringing employment to an end, they are not without legal requirements. These are:

• There must be an issue regarding the employee’s performance or conduct.
• The employer must notify the employee that they wish to have a protected conversation. As part of this, you must let them know that anything discussed in the conversation cannot later be brought to question as part of a Tribunal case, including an unfair or constructive dismissal claim.
• The employer must explain the employee’s offer within the protected conversation. This offer can include an exit payment, an opportunity for the employee to leave without working their notice period, providing a good reference, a release from restrictive covenants and/or a contribution towards legal fees for a settlement agreement.
• The employee must be given a reasonable time to consider the offer (according to Acas, this is 10 days)
• The employer must not pressurise the employee into accepting the offer.

What should employers bear in mind with protected conversations?

If you are considering having an off-the-record meeting with an employee, when making your offer, you might want to think about:

• When the employment will end and whether you require the employee to work their notice period.
• What happens to the employee’s holiday allowance, bonus and benefits?
• Whether you want to provide an exit payment or compensation.
• Whether you will provide a good reference to enable the employee to find new employment.
• Whether the employee has a restrictive covenant in their employment contract.
• Whether you want to offer a settlement agreement and if you are willing to contribute towards the legal costs.

If you are considering terminating an employee’s employment in a protected conversation or a without-prejudice conversation and you are unsure about any of the above, it is important to seek legal advice. An employment solicitor can advise you on what to consider and what to put in place to ensure any conversation runs smoothly and that you are protected should the employee bring a claim against you in the future.

Contact our employment lawyers in Bristol

For common-sense advice on protected conversations or any other employment-related issue, get in touch with our specialist employment law solicitors. To speak to a member of our team, call 0117 325 2929 or fill out our online enquiry form.