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What Are Protected Conversations

Protected conversations were introduced to make it easier for employers and employees to have open and, importantly, risk free discussions about possible termination of the employee’s employment when things are not working out.

In truth, they are probably more useful to employers than employees but they can help both parties to negotiate a settlement to a thorny and difficult situation.

Provided all the formalities are met, the law means that pre termination negotiations cannot subsequently be mentioned in any unfair dismissal Employment Tribunal claims even if there was no ongoing dispute between the parties when the negotiations took place. This means that both parties can speak freely without risk of a claim. In effect it would allow an employer to explain to an employee that things are not working out and propose terms of settlement for the termination of the employee’s employment, or to offer terms as an alternative to going down a disciplinary procedure.

There are limits and qualifications as to when these conversations will be protected  (and they are only protected in unfair dismissal claims) so care needs to be taken to make sure that the negotiations remain protected.

ACAS has published a Code of Practice (http://www.acas.org.uk/media/pdf/j/8/Acas-Code-of-Practice-on-Settlement-Agreements.pdf) and a non-statutory guide (http://www.acas.org.uk/media/pdf/o/a/Settlement_agreements_(the_Acas_Guide)JULY2013.pdf) which provide practical advice on this topic but employers should take legal advice before embarking down the route of Protected Conversations as getting it wrong could be expensive!

If you are an employer or an employee who would like some more information on this or any employment law issue then feel free to email me: chris.macwilliam@clough-willis.co.uk