Dealing with employment law issues is very process driven. You have to do the right things, in the right order at the right time or put yourself at risk of a claim. Life, unfortunately, is generally a lot messier than that.
In 2013 the then Government introduced the statutory concept of pre-termination negotiations more commonly known as protected conversations to ease the process of an employer and employee parting company.
Before then there was really no reliable mechanism for having a chat with your employee to tell them you wanted them to go for whatever reason without that conversation being used in a Tribunal against you. What employment law requires is that you deal with a situation then make your mind up that someone has to go after you have followed a formal process. What actually happens in practice is that an employer assesses a situation which has arisen, decides upon the employee who is going then dismisses them. They are then surprised to find that this is unfair and a claim ensues.
If an employer wanted to deal with a situation by just talking to an employee more informally to tell them e.g. their work wasn’t up to standard or they just too disruptive there was no safe mechanism for doing so. You could talk to them on a “without prejudice” basis but this should only be used where there is an existing dispute. At the point at which you wanted to talk to an employee about, say, a misconduct or capability issue, there probably won’t be a dispute even if one develops later. As a result many without prejudice communications turned up in Tribunal claims. In addition the concept of Without Prejudice is widely misunderstood and is used in a lot of situations in which it was simply not appropriate. It is also quite a legalistic term primarily used by lawyers and often gave an aura of formality which was simply not warranted.
The other common words used were speaking “off the record” but the problem with this was that it had no legal meaning and you never really knew if something was off the record or not. Legally it wasn’t and lots of those conversations turned up in Tribunal as well.
Enter the coalition government on 29 July 2013 with its brave new concept of a “protected conversation” introduced by a new section 111A to the Employment Rights Act 1996
The government’s objective when introducing protected conversations was that they would give employees and employers the option to end the employment relationship both swiftly and amicably without the need to wait for a formal dispute to arise. The benefit of this is that it enables an employer to actively manage their workforce, rather than simply reacting to an employee’s misconduct, grievance or poor performance, as the case may be. This can be useful in certain scenarios – for example, in a situation where an employer wants to move quickly and avoid lengthy internal proceedings, or where the employment relationship is not working out but there is not a sufficient reason to commence a formal process leading to dismissal.
On the face of it, protected conversations seem like a great idea and good for employers and employees because it gives them the opportunity to discuss ways forward without the risk of the conversation being disclosed in any subsequent ordinary unfair dismissal claim.
And this is where it all goes wrong because the reality is that protected conversations give good protection but only in limited circumstances. Protected conversations will still be admissible in Tribunal where there is a claim for any kind of discrimination, harassment or victimisation, wrongful dismissal, breach of contract, detriment claims or claims of automatic unfair dismissal. There are now so many types of discrimination that it is really common even in basic unfair dismissal claims to find a discrimination claim tagged on. This undermines the effectiveness of protected conversations and means employers run the risk of a protected conversation being brought to the attention of a Tribunal in the event that the employee brings one of these claims.
The other issue is that an employer cannot rely upon the protected conversation if there has been “improper behaviour”. There is no more detailed definition in the legislation and no guidance notes so it is being left to case law to determine what amounts to improper behaviour, Thus encouraging disputes when the idea was to avoid them. Clearly threats of violence will be improper and there is one case in which an employee was given insufficient time to consider an offer. There are plenty of other behaviours which one person would regard as improper and another just a commercial negotiation. The line has not been drawn anywhere.
They can only be used in pre-termination negotiations not for anything else. An employer might want to talk to an employee about all sorts of things about their employment which may or may not lead to their dismissal. To gain protection you have to use the Dismissal word.
Despite these considerable reservations protected conversation can be a useful first step to opening a dialogue the aim of which is to terminate employment on agreed terms. If the employee agrees to those terms and signs up to a settlement agreement, the issue of whether any pre termination discussions are admissible is no longer relevant because all claims will be settled. This is a very common outcome of these negotiations. Once these sorts of conversations have been introduced trust becomes a big issue and invariably there is no going back to a settled employment relationship.
So what is the conclusion. A really good idea undermined and deeply flawed at the implementation stage like so much of our recent legislation. Use it in the right circumstances and it is genuinely useful. Get it wrong and some fatally damaging words might surface in Tribunal or your settlement might be more than you anticipate.