If you or your employer want to discuss ending your employment on agreed terms, the best approach is to have a protected conversation.
In this article, you’ll learn everything you need to know about having a protected conversation, how to prepare and how to negotiate the best deal.
If you’d like some free advice about your situation, call us on 0330 333 6050 or fill in the contact form below.
What is a protected conversation?
A protected conversation is an ‘off-the-record’ conversation between an employer and an employee.
Provided the purpose of the conversation is to explore the possibility of a settlement agreement, anything said by you or your employer can’t be used as evidence in an unfair dismissal claim. The conversation is protected.
However, there are limited exceptions. For example, if there has been improper behaviour, it may be possible to refer to the discussions in an employment tribunal claim. Examples of improper behaviour include:
- harassment, bullying and intimidation
- discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership
- unfair pressure, such as saying that if the offer is rejected, then the employee will be dismissed
In addition, the protected conversation rule only applies to unfair dismissal claims – not other types of claims such as discrimination or breach of contract.
Is a protected conversation confidential?
Just because the details of a protected conversation can’t usually be used in evidence in an unfair dismissal claim doesn’t necessarily mean that the conversation has to be kept confidential from everyone else. The scope of confidentiality may be subject to an agreement between you and your employer.
For example, it may be helpful for you to be allowed to discuss it with a family member or legal adviser. Your employer’s representative may want to discuss it with senior company members or an HR consultant.
What’s the purpose of a protected conversation?
The purpose of a protected conversation is to enable an employer and employee to talk freely without the risk of legal proceedings.
An employer may want to propose a termination of employment on mutually agreed terms. There may be several reasons for this, but it’s often because of issues such as:
- concerns about poor performance
- changes within the organisation
- clash of personalities
Instead of going through a formal disciplinary or redundancy procedure, a better option is often to start confidential exit negotiations with a view to agreeing on a financial settlement.
Before 2013, many employers feared having frank conversations with their staff because of the risk of legal proceedings.
Occasionally, an employer would try to have a frank conversation with a staff member only to find that it backfired – the employee took offence, resigned and claimed constructive dismissal.
The Government proposed that “off the record” conversations be allowed so that “the boss and an employee feel able to sit down together and have a frank conversation – at either’s request” (David Cameron’s speech on 10 November 2011).
In 2013, the government introduced “protected conversations” to help both employers and employees resolve disputes with the minimum risk. The provisions were inserted into Section 111A of the Employment Rights Act 1996.
What is Section 111A of the Employment Rights Act 1996?
Section 111A of the Employment Rights Act 1996 states that evidence of pre-termination negotiations can’t be used in an unfair dismissal claim. “Pre-termination negotiations” includes any offer or discussion about the possibility of ending employment with a settlement agreement.
Should you agree to a protected conversation?
If you’re invited to have a protected conversation with your employer, you’re not obliged to agree to it. However, it may well be in your best interests to attend. It’s an opportunity to find out what your employer is prepared to offer you, and there’s no obligation to accept.
Can you initiate a protected conversation yourself?
Although a protected conversation is usually initiated by the employer, an employee can also request one, provided that its purpose is to explore a settlement agreement.
Ask your employer if they’re willing to have a protected conversation.
Your staff handbook may contain more information about how your employer handles protected conversations, but if it doesn’t, you could just send an email along the following lines:
I would like to have a meeting about the possibility of bringing my employment to an end by way of a settlement agreement.
I understand that, under section 111A of the Employment Rights Act 1996, this meeting should be conducted by way of a protected conversation.
Please could you let me know a convenient time.
If your employer isn’t familiar with the principle of protected conversations, you may want to refer them to the ACAS Guide to Settlement Agreements, which gives them all the information they need.
The timing of your request for a protected conversation may significantly affect your chances of getting a decent settlement.
Put yourself in your employer’s shoes. They don’t want the hassle of going through a formal process, such as a disciplinary or redundancy procedure. If you ask for a protected conversation early in the procedure, your employer may be more inclined to agree to a settlement.
How should you prepare for a protected conversation?
Make sure you prepare in advance. You need as much information as possible.
You may find it helpful to ask questions like:
- why is your employer proposing to terminate your employment?
- how much are you being offered, and how is that calculated?
- will you be expected to work your notice period?
- will you be offered a reference?
- what is the alternative if you don’t agree to a settlement agreement?
You’re not under any obligation to accept any proposed settlement agreement. In fact, the law doesn’t allow you to accept it until you’ve taken legal advice on it. The cost of this legal advice is usually paid for by the employer.
Ask your employer to confirm the proposal in writing. This could be a draft settlement agreement or simply a letter or email. This will help you to clarify what is being offered.
Do you have the right to have a companion with you to witness the protected conversation?
There is no legal right to be accompanied at a protected conversation. Unlike disciplinary or grievance hearings, you can’t insist that a colleague comes with you to the meeting.
However, it is good employment practice for the employer to allow the employee to be accompanied. Many employers have a protected conversations policy allowing staff to bring a companion.
We recommend that you should at least ask to be accompanied at the meeting. However, if your employer won’t allow it, you should attend alone if you can.
Exploring a Settlement Agreement
You could propose a settlement agreement at the meeting or ask your employer to make an offer.
Although the most important aspect of a settlement agreement is usually the financial amount, you should consider non-monetary aspects such as:
- a detailed reference
- outplacement support (professional help with finding another job)
- release from anything in your employment contract that restricts you after the end of your employment
There are three approaches to negotiating a settlement agreement (and we usually recommend the third wherever possible):
If you have a good relationship with your employer, you may be able to negotiate a better settlement simply by being nice.
Explain to your employer how grateful you are for your job, how difficult you will find it to leave, and the financial difficulties you may experience as a result.
Ask your employer if they’d be willing to offer you a higher payment in recognition of your contribution to the business over the time you’ve been there.
2. Threaten legal proceedings
Sometimes, you have to spell out to your employer the fact that you could take them to an employment tribunal.
If you were to do so, you may be able to claim significant compensation from them. It’s in their interests to settle the dispute to avoid:
- the legal costs of defending a claim
- the potential for a judge to order them to pay a much higher award if the dispute goes to a hearing
- bad publicity
This approach is more aggressive but with some employers, it’s necessary.
Although you may not want to bring employment tribunal proceedings, it’s important that you consider what a claim would be worth because it affects the amount of compensation you should expect.
3. A mixture of goodwill and threatening legal proceedings
If you plan the negotiation carefully, you may be able to benefit from both approaches.
The trick is to make your lawyer out to be the bad guy. Get some legal advice on how much a potential claim is worth, and then say something like this:
“My solicitor advises me that I could take you to an Employment Tribunal. I would prefer to avoid that if possible but I think the amount you offer me should reflect the fact that I could claim significant compensation”
This kind of approach may enable you both to maintain goodwill at the same time as making your employer aware of the risk of legal proceedings.
For more tips on getting the best deal, read these tips about negotiating a better settlement agreement.
What happens next?
Your employer should give you a reasonable period of time to consider any proposed settlement agreement. ACAS recommends ten days, although employers rarely give this long in practice.
You will need to get legal advice on any proposed settlement agreement. Otherwise, it won’t be legally binding.
We recommend that you speak to a solicitor at an early stage. There may well be scope for negotiating a better settlement agreement.
Need help with a protected conversation?
If you want help from a solicitor, feel free to call us for a free consultation. We advise clients throughout the UK.
From a landline: 0800 531 6050
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