What is a protected conversation?

Protected conversations are a new concept which was introduced in 2013. This provides that an employer who commences a conversation with an employee with a view to terminating his or her employment under a settlement agreement, can do so without the employee being able to rely on the details of the conversation as evidence in an unfair dismissal claim. So, your employer can take you to one side and “out of the blue” have an open discussion with you in which you are offered a sum to leave- and it is that discussion that becomes “protected” and not able to be used in future tribunal proceedings.  It is different to the previous position in that such protection only applies where a formal dispute had already arisen (such as a prior performance improvement plan, or disciplinary proceedings).

The aim of the new legislation is clear; it is to help employers facilitate   an early exit of under -performing staff without the necessity of going through a lengthy process.

The provision is limited to standard unfair dismissal claims only; it does not apply, for example, to discrimination cases or other types of claim.

There is also a framework within employers need to operate if they wish to retain protected status of their offer to the employee. For example, employers can lose protection where they have acted “improperly” (such as exerting undue pressure on the employee) and employees are to have a 7 day “cooling off period”  to consider any offer. You can access the ACAS guide to expected practice relating to protected conversations and settlement agreements by clicking here.

The idea of protected conversations will doubtless promote transparency in the workplace- after all if your employer doesn’t want you to hang around, isn’t it better you should know this early and have the option to leave with a lump sum payment and a reference rather than going through an onerous performance process?  On the other hand, employers may take advantage of the ability to “cut to the chase” with their staff in the knowledge that many will not bother hanging around once they become aware they are not wanted.

It will be interesting to see the extent to which the new rules are adopted in practice, and whether there will be a sea change of trepidation in the workplace every time your line manger calls you in for a “quick chat”.

Please contact Philip Landau for further advice relating to this or any other employment matter. 020 7100 5256