“Protected Conversations”Employers and Employees

New law came into force on 29^th July 2013 which provided that in certaincircumstances evidence of ”pre-termination negotiations” between an employer and an employee cannot later be used in evidence in an unfair dismissal claim by an employee. 

Prior to 29^th July 2013 when a “dispute” had arisen between an employer and an employee e.g. the employee had already started a claim or intimated a claim the parties could have a “without prejudice” discussion (i.e. off the record) with a view to resolving the dispute.  The “without prejudice” label would mean such discussions could not be referred to by an employee in any subsequent Tribunal claim. 

The new law seeks to deal with the difficulties of being able to have “without prejudice” discussions when there is no “dispute”, e.g. when an employer thinks that “it is not working out”.  Under these proposals an Employment Tribunal would not be able to take account of any offer made or discussions prior to the termination of the employee’s contract where the aim was to bring the employee’s contract to an end on “agreed” terms.  This is however only limited to employee’s making claims for unfair dismissal.  This sounds great but Daven Naghen, head of our Employment Team, comments as follows:-

“The new rules only relate to claims brought by employees for unfair dismissal, and such conversations are not protected say for the purposes of a claim for discrimination. Furthermore if there is say a joint claim of unfair dismissal and discrimination, then it is likely that the Employment Tribunal will hear evidence of the conversation as part of the discrimination case. Therefore the employer cannot necessarily count on the fact that such conversations will be protected. 

Furthermore the rules will not apply if the Employment Tribunal consider that the behaviour of the employer is “improper”, giving the Employment Tribunal a wide discretion as to whether or not to hear evidence of such discussions.  “Improper” behaviour could for example cover things such as not allowing the employee a reasonable amount of time to consider a proposal or telling an employee that if he or she does not agree terms then he or she will be fired in any event. 

Therefore there are absolutely no guarantees that any such conversations between an employer and an employee will be protected. 

ACAS has provided a Code of Practice (which an Employment Tribunal must take into account) and a Guide.  However I would strongly advise any employer that before commencing any difficult conversations with an employee relating to the possible termination of the employee’s contract that legal advice is obtained on how to approach and deal with the conversation.”

If you need any help or guidance on this issue then please do not hesitate to contact Daven on 01775 722261 or email Daven at daven.naghen@maplessolicitors.com or by writing to 23 New Road, Spalding, Lincolnshire PE11 1DH.