Will Burrows (solicitor) says:
So, very briefly, under the rules of protected conversations, an employer can just take you aside 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 lieu of notice. So long as there are no allegations of discrimination or whistleblowing, then a protected conversation is still off the record, just like a without prejudice conversation. The main difference is that a protected conversation is not used where there is a dispute between employer and employee.
Your employer must still 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 duress 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.
Difference between protected conversations and without prejudice conversations
These are similar kinds of exchange that an employer can have with an employee. Your HR department might well invite you to have a protected conversation. However, by the time you start negotiating for a settlement agreement, your exchanges with your employer will usually follow the without prejudice rules.
Chris Hogg (solicitor) says:
Protected conversations are a statutory 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 an unfair dismissal claim against your employer. They are similar to “without prejudice” conversations but have several differences, which can be used to your advantage.
Unlike “without prejudice” communications there does not need to be a pre existing dispute before your employer can have a protected conversations with you. There are however important limitations to the scope of protected conversations which you can use to your advantage.
Firstly, 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.
Secondly, your employer cannot discriminate against you in a protected conversation. If you think you have been selected for the conversation due to your sex, 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 seek to have 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, you’re usually better off having a “without prejudice” conversation at the appropriate time than seeking to have a protected conversation before you’ve raised a dispute.
- 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 the offer
What to do
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. Just 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.
You should 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. It is useful to seek legal advice to ensure you can get the best settlement possible. Your employer’s first offer is often not its best.
If you reach an agreement with your employer on the offer you will still have to negotiate and agree a settlement agreement. You will require legal advice on this agreement for it to be legally binding. Your employer will pay for the cost of this advice as it is in their interests to have a binding agreement.