Protected conversations

Topic Index
Overview
Where a protected conversation may be appropriate
Conditions applicable to protected conversations
ACAS guidance on protected conversations
How to have a protected conversation

Overview


  • Employers (and employees) can initiate and enter into off the record ‘protected conversations’ with a view to agreeing the exit of employees – even if there is no existing dispute between the parties.
  • As long as certain conditions are met, the fact or content of such conversations cannot be used in subsequent employment tribunal proceedings for 'ordinary' unfair dismissal.
  • This scheme runs in tandem with - but is different from - the ‘without prejudice’ principle that applies to negotiations aimed at resolving an existing dispute.
  • Post-termination negotiations, for example about the settlement of a potential claim, cannot benefit from the protection afforded by a ‘protected conversation’.
  • The applicable law is contained in s. 111A of the Employment Rights Act 1996.
  • Following a protected conversation, the parties will usually conclude a settlement agreement which will bind them to what has been agreed. Such a settlement agreement is the only legal way of an employee limiting their statutory rights to bring a tribunal claim – unless they have employee owner status.
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