Improper Behaviour in a Protected Conversation: What Employees Need to Know

A protected conversation is meant to allow an employer and employee to discuss a possible settlement agreement openly without worrying that what they say could be used against them. However, the protection is not unlimited. If there is “improper behaviour” on the part of your employer, some or all of what was said may be allowed as evidence in an Employment Tribunal.

This article looks specifically at improper behaviour during a protected conversation. If you want a general explanation of what a protected conversation is, you may wish to read our separate guide to protected conversations.

What does “improper behaviour” mean?

Improper behaviour means conduct that makes it unfair for the employer to rely on the usual protection given to a protected conversation.

There is no complete list of what counts as improper behaviour. An Employment Tribunal will look at the facts of each case. This may include what was said, how it was said, how the meeting was arranged, whether you were put under pressure, and whether you were given a fair opportunity to consider the offer.

In other words, the Tribunal may look at the whole picture, not just the employer’s choice of words.

Examples of improper behaviour in a protected conversation

Improper behaviour may include the following.

Threatening dismissal if you do not accept the offer

One of the clearest warning signs is being told that you will be dismissed if you do not accept the settlement agreement.

There is an important difference between an employer calmly explaining possible next steps and an employer threatening you.

For example, an employer may be able to say:

“If we cannot agree terms, we may need to begin a formal redundancy process.”

That is different from saying:

“If you do not accept this offer, you will be dismissed.”

The second statement may amount to undue pressure, particularly if no fair redundancy, disciplinary or capability process has taken place.

Improper behaviour can include putting you under undue pressure

A protected conversation should not be used to force you into a quick decision.

Improper pressure may include:

• demanding an immediate answer;
• telling you that the offer will be withdrawn unless you accept straight away;
• discouraging you from taking legal advice;
• pressuring you to resign;
• suggesting that there is no point challenging the employer’s decision.

Acas recommends that employees should normally be given at least 10 calendar days to consider the proposed written terms of a settlement agreement and obtain independent legal advice.

Ambushing you with an unexpected meeting

Sometimes employees are called into a meeting without warning and then suddenly presented with an offer to leave their job. This can feel like an ambush.

An unexpected meeting will not automatically make a protected conversation improper. However, it may be relevant if, taken together with other factors, the employee was placed under unfair pressure.

For example, the situation may be more concerning if you were given no warning, no explanation, no chance to prepare, and were then pressured to accept an offer immediately.

Refusing a reasonable request to be accompanied

There is no automatic legal right to be accompanied at a protected conversation. That is different from certain disciplinary or grievance hearings.

However, Acas says that allowing an employee to be accompanied by a work colleague or trade union representative is good practice. A refusal to allow a companion may be relevant when considering whether the employer behaved improperly, especially if the meeting was unexpected or difficult.

Bullying, intimidation or aggressive behaviour

A protected conversation should not involve bullying or intimidation.

Bullying is not always easy to define, but, depending on the circumstances, examples may include:

• shouting;
• using offensive or humiliating language;
• making personal attacks;
• threatening disciplinary action without proper basis;
• making the employee feel they have no real choice.

An employer can explain genuine concerns about performance, conduct or redundancy. But those concerns should be raised in a calm and reasonable way.

Discrimination or victimisation

A protected conversation will not protect discriminatory behaviour.

If the conversation involves discrimination because of age, disability, sex, race, pregnancy, maternity, religion or belief, sexual orientation, gender reassignment, or another protected characteristic, the employee may still be able to rely on what was said.

The same may apply where the employer is victimising the employee because they have complained about discrimination or asserted legal rights.

What if the employer says the conversation is “off the record”?

Employers sometimes say that a conversation is “off the record” or “without prejudice” as though that automatically prevents the employee from ever mentioning it again.

That is not always correct.

Whether the conversation is protected depends on the legal rules and the circumstances. If there has been improper behaviour, or if the employee has claims other than ordinary unfair dismissal, the conversation may still be relevant.

Protected conversations do not cover every type of claim

Section 111A protection mainly applies to ordinary unfair dismissal claims. It does not necessarily stop the conversation being used in other types of claim.

For example, a protected conversation may still be relevant to claims involving:

• discrimination;
• whistleblowing;
• automatic unfair dismissal;
• asserting statutory rights;
• unlawful deduction from wages;
• breach of contract;
• wrongful dismissal.

This is one reason why it is important to take legal advice before assuming that the conversation can never be mentioned.

What should you do if you think your employer engaged in improper behaviour?

If you believe your employer behaved improperly during a protected conversation, try to make a clear record of what happened.

You should write down:

• the date and time of the meeting;
• who was present;
• how the meeting was introduced;
• whether you were given advance notice;
• whether you were allowed to bring someone with you;
• what was said about dismissal, redundancy or disciplinary action;
• how long you were given to consider the offer;
• whether you felt pressured to accept.

Do this as soon as possible, while the details are fresh in your mind.

Should you reject the settlement agreement?

Not necessarily.

Even if your employer has behaved badly, the settlement agreement may still be worth considering. The key question is whether the offer is good enough in light of your legal rights, the pressure you have been placed under, and the potential claims you may have.

In some cases, improper behaviour may give you more leverage when negotiating a settlement agreement. The best approach may be to negotiate calmly without immediately threatening a Tribunal claim.

A solicitor can help you decide how to respond.

Can improper behaviour help you negotiate a better settlement?

Yes, it can.

If your employer has put you under unfair pressure, threatened dismissal, refused reasonable time to consider the offer, or acted in a discriminatory way, this may increase the risk to them. That risk can sometimes be used to negotiate a better settlement package.

This may include:

• a higher compensation payment;
• payment in lieu of notice;
• an agreed reference;
• payment of bonus, commission or holiday pay;
• changes to restrictive covenants;
• an agreed internal and external announcement.

How Mason Bullock Solicitors can help

At Mason Bullock Solicitors, we advise employees on settlement agreements and protected conversations.

If you are concerned that your employer has behaved improperly, we can help you understand:

• whether the conversation may still be protected;
• whether you may have Employment Tribunal claims;
• whether the settlement offer is reasonable;
• how much more you may be able to ask for;
• how to respond without damaging your position.