Protected conversations at work – a guide for employees

It is unlikely that a “protected conversation” will in fact be “protected” where no settlement offer is made to the employee. There therefore needs to be two elements present to have a “protected conversation”:

1. A discussion regarding concerns that the employer has about the employee (whether relating to conduct, performance, or otherwise);
2. A settlement offer made by employer to employee

in July 2013, the Conservative Government introduced new legislation (in section 111A(1) of the Employment Rights Act 1996) to operate alongside the without prejudice principle – this new legislation introduced the concept of “pre-termination negotiations” (also known as “protected conversations”). The purpose of the legislation was to allow employees and employers to have “frank conversations” about termination at either’s request (in practice, these conversations are normally started by employers, but they can be and are initiated by employees); the main consequence of the legislation was to make it easier for employers to initiate settlement conversations with employees with less risk of those conversations being admissible in subsequent tribunal proceedings.

Further reading: section 111a Employment Rights Act 1996 – what is it and what does it do?

How do you have a protected conversation?

For an employer and an employee to have a protected conversation there need not be an existing dispute between them – the protected conversation can therefore often come as a surprise to an employee.

The employer also does not have to schedule a formal protected conversation with you – it could, for example, be a simple informal affair where your line manager takes you to one side and has a discussion with you (informing you, for example, that they think that you are underperforming, that they want you to leave your employment, and that they will offer you an exit package.

There are of course rules to what circumstances a protected conversation can be held in:

• Where a protected conversation can be held: where the employer has concerns regarding your employment which could result in an unfair dismissal claim (if you are dismissed)
• Where a protected conversation cannot be held: where there are allegations of discrimination, whistleblowing, or breach of contract

When are protected conversations used?

“Protected conversations” are generally used where the employer wants to terminate the employee’s employment (for example, in a situation where the employee is being accused of misconduct or the employer thinks they are underperforming).

There are various reason why employers use “protected conversations” (and settlement agreements in general), but the principal reasons are normally: 1) in order to effect a quick and reasonably ‘painless’ exit, without protracted disciplinary or capability processes being undertaken; and 2) in order to limit the employer’s liability to the employee (i.e. to avoid a claim being brought against it).

How should the employer behave in such conversations?

Your employer must act properly when holding a protected conversation (and, conversely, must not act ‘improperly’).

If an employer engages in improper behaviour in a protected conversation then that conversation may no longer be ‘protected’ (and therefore may be admissible for the purposes of an unfair dismissal claim – this means that it can be considered by an Employment Judge and used as evidence in a claim for unfair dismissal or constructive dismissal).

Protected conversations: what do they mean in practice?

In practice if an employee is approached by their employer and told that they are going to have a “protected conversation” then this is generally a prelude to the employee being told that they are going to be offered a settlement agreement, with a view to their employment terminating in the near future. There will then normally be a discussion between the employer and the employee regarding the ‘severance package’ to be offered to the employee, and the employee will then normally be provided with a copy of a settlement agreement. The employee will also be told that they should obtain independent legal advice from a legal adviser (such as a solicitor).

The effect of a “protected conversation” will be, for the purposes of unfair dismissal claims, to render the fact and contents of a “protected conversation” inadmissible unless there has been “improper behaviour” on the employer’s part .

What should you do if your employer holds a protected conversation with you?

If your employer has asked you to participate in a “protected conversation” with it, or you have been offered a settlement agreement, then it is a good idea to get in touch immediately with a specialist legal adviser (such as an employment solicitor) in order to obtain independent legal advice on your situation – it is normally important to move quickly to negotiate the terms of the agreement in order to optimize the chances of success of negotiation.

What constitutes ‘improper behaviour’?

Examples of improper behaviour would include (please note that this is not an exhaustive list):

1. Any form of harassment, bullying and intimidation;
2. Physical assault or the threat of physical assault;
3. All forms of victimisation and discrimination;
4. Putting undue pressure on a party (for example, not giving them a reasonable time in which to consider the terms of a settlement agreement)

There is, however, no particular guidance on what constitutes “improper behaviour” and whether an employer’s behaviour has been improper will depend on the facts and circumstances of each case.

Examples of what is unlikely to be improper include:

1. Setting out in a neutral manner the reasons that have led to the proposed settlement agreement; and
2. Factually stating the alternatives if agreement cannot be reached, including the possibility of disciplinary action if relevant.

The ACAS Guide on Settlement Agreements includes a number of useful examples of what might be considered to be improper behaviour.

What constitutes improper behaviour was considered by the Employment Tribunal in Crespigny v Information Security Forum Ltd ET/2300316/14 (our analysis of the case can be found here).

Further reading: read our guide on settlement agreements here

Can an employee ask for a protected conversation?

The simple answer to this is “yes” – there is nothing in the legislation which states that only an employer can ask to have a protected conversation with an employee. However, before you ask your employer for a protected conversation it’s recommended that you set out in writing to them what your concerns are (for example, via a grievance). Doing this will strengthen your case to negotiate an ex-gratia settlement payment.

Once you have formally submitted your concerns then you will probably want to put a ‘without prejudice’ offer forward to your employer (rather than have a protected conversation with them).

What should you do if you’re asked to have a protected conversation?

If you’re asked by your employer to have a protected conversation then there is normally no harm in agreeing to have a chat with them – there’s no risk in hearing what your employer has to say and the conversation may end up being advantageous to you (particularly if you’re not really happy at the business).

When you’re having the protected conversation we recommend the following:

1. Take good notes of what your employer says
2. Don’t feel like you have to respond to what your employer says (whether it’s relating to a settlement offer or any criticism of your conduct or performance) – say to them that you’ll think about what they’ve said and come back to them
3. Get clear details of what you are being offered – check the sums that your employer is willing to pay, whether you will be getting a reference, what the termination date will be etc.
4. Clarify with your employer what you will receive if you don’t accept the settlement agreement – if your employer says that they will dismiss you then you can use this to your advantage (as the conversation will no longer be protected and you can try and use this to negotiate an increased offer)
5. Take legal advice from specialist employment solicitors as soon as you are able – your employer will normally pay for the cost of this under the settlement agreement offered and it will allow you to obtain an objective third-party view on whether what you are being offer is reasonable

Further reading:

• Read our article on whether you should accept a settlement agreement offer
• Read our article on how much you should expect to receive for your settlement agreement

Employment Tribunal claims involving protected conversations

• Y Gregory v Robert Davies John West Ltd: 3334177/2018 – in this claim the Employment Tribunal found that the Claimant seeking a protected conversation (among other things) meant that she had affirmed her contract, defeating her claim for constructive dismissal (Employment Tribunal decision)
• Mr M Quinn v D E Product Labels Ltd: 4105310/2020 – in this claim the Employment Tribunal held that an employer offering a protected conversation constituted a detriment to its employee, but that the offering of the protected conversation was not because the employee had ‘blown the whistle’ (Employment Tribunal decision)
• Mrs D Lingard v Leading Learners Multi Academy Trust ET/2401985/2017 – in this case the Employment Tribunal held that giving a 4-day time period for the acceptance of a settlement agreement offer did not constitute ‘improper behaviour’ (Employment Tribunal decision, our analysis of the case)