Protected conversations are a legal construct that enables your employer to have an ‘off the record’ chat with you, and make you an offer to leave the business, without you being able to refer to that conversation in a tribunal claim later.
What are the rules on having a protected conversation?
Under the rules, an employer can just take you aside, ask you for a protected conversation and tell you, for example, that your work is sub-standard, that they want you to leave, and that they’ll offer you a payment in return. So long as there are no allegations of whistleblowing, breach of contract, or discrimination, then a protected conversation is off the record. For your employer to use a protected conversation with you, there need not be an existing dispute between you.
Your employer must act ‘properly’ when conducting a protected conversation. If they act improperly, for example by threatening you that unless you take what is being offered, then you will be dismissed; or by applying excessive pressure to ensure you accept their terms, then the conversation is no longer protected. In that case it can be referred to by a judge and used as a reason for you to resign or to sue for unfair dismissal.
There are however a couple of important limitations to the scope of protected conversations which you can use to your advantage, namely:
1.Your employer cannot dismiss you or tell you that you will be dismissed under the guise of a protected conversation. They can say that if you do not accept the offer then they will start an disciplinary or performance management process but they cannot tell you that this process will lead to you being dismissed.
2. Your employer cannot discriminate against you in a protected conversation. If you think you have been selected for the protected conversation due to your gender, race, maternity etc or because you have raised concerns about discrimination, then the conversation will not be ‘protected’. It is not uncommon for employers to attempt having protected conversations with woman returning from maternity leave, but this will almost always give rise to a claim of maternity discrimination.
Employees can use protected conversations too but you’re better off making sure your employer knows you have an issue first, otherwise there is no reason for them to agree to pay you an ex gratia settlement amount. As such, it would be best for you to have a ‘without prejudice’ conversation at the appropriate time, rather than seeking to have a protected conversation before you’ve raised a dispute.
What should you do if asked to have a protected conversation?
If you’re invited to have a protected conversation with your employer, agree to have one. There is no harm in hearing what your employer has to say and it may be of benefit to you – especially if you’re already unhappy in your job. When you’re in the meeting:
- Just listen to what your employer has to say but don’t respond to any offer made or to any criticisms of your performance or conduct. Say you’ll consider what your employer has said and come back to them.
- You should however clarify any points about the offer that you are not sure about e.g. are you going to be required to work your notice period, what tax treatment is the employer going to apply to the payments? You should also clarify what will happen if you don’t accept the offer. With any luck your employer will say that you will be dismissed, ensuring that the conversation is no longer protected and allowing you to negotiate a better deal.
- Ensure you take good notes of what your employer says in case there is any later dispute. After the conversation, you should consider carefully the offer that has been made and ways you may be able to improve it. Your employer’s first offer is often not their best.
Top TipsWill Burrows
Do agree to have a protected conversation – it never hurts to listen
Don’t respond to any offer made or engage with your employer – take time to reflect
Do ask what will happen if you don’t accept any offer made
By the time you start negotiating for a settlement agreement, your exchanges with your employer will usually follow the without prejudice rules explained in our article on how to use without prejudice.