The concept of a “Protected Conversation” came into being about six years ago under Section 111A of the Employment Rights Act 1996. This allows employers and employees to have “off the record” discussions in circumstances where the employment relationship may have become tenuous, and in order to facilitate an exit negotiation.  Unlike without prejudice conversations, there is no need for a pre-existing dispute in order for such discussions to be off the record.

The comfort of the Section 111A conversation is that these discussions cannot be relied upon or even referred to as having occurred, as part of any subsequent ordinary unfair dismissal proceedings.  They are therefore used very frequently and are an effective way of minimising the risk of escalation of potential disputes and of managing the exits of employees in mutually convenient and expedient ways.

There are of course exceptions to the principle and the recent case of Harrison v Aryman Limited UK EAT/0085/19 provides some useful clarification on these.

Protection against potential disclosure in proceedings is limited to claims for ordinary unfair dismissal only.  This excludes claims where whistleblowing is alleged for example (automatic unfair dismissal claims) as well as claims for discrimination or breach of contract or wrongful dismissal.

Evidence of pre-termination negotiations is admissible also where a Tribunal considers the employer has said or done something that constitutes “improper behaviour”.  The Harrison case has clarified that in such circumstances it would be necessary to include details of what the alleged improper behaviour is, in the claim form, and then findings of fact would need to be made by the Tribunal at a Preliminary Hearing  in order to ascertain whether the behaviour was indeed improper and therefore whether the evidence should be admitted in full or part.

Where the allegation is that the dismissal is automatically unfair or discrimination has occurred for example, then provided the Claimant has pleaded such a claim correctly, the pre-termination negotiations are not protected at all and are admissible automatically without the Tribunal having first to make findings of fact.  This would remain the case even if ultimately the discriminatory element of the claim were to fail. This could be exploited by a cynical Claimant who claims discrimination for example merely to provide a platform to admit protected conversations.

The Harrison case provides a helpful summary of the principles and serves as a useful reminder that protected conversations are not a fail-safe solution to all tricky situations. Some employers use protected conversations almost by way of default and that can be a risky enterprise, particularly if negotiations break down. Negotiations which are admissible as evidence will most likely undermine the fairness of any subsequent dismissal and result in potential liabilities.  A useful starting point for guidance before embarking on such a conversation and as to what may constitute improper behaviour for example, is the ACAS Code of Practice on Settlement Agreements.

Used correctly and for the right reasons they can save time and money as well as preserve dignity and morale. Just make sure you are properly protected!

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