Protected conversations

Our legal team provides expert advice and guidance on protected conversations, a confidential process that allows employers to discuss termination of employment with employees without fear of the conversation being used against them in future legal proceedings.

• A protected conversation allows you, in certain circumstances, to negotiate with an employee and have the assurance that the employee will not be able to rely on the conversation in any later claim for unfair dismissal which the employee may seek to make.
• There are a wide and complex range of caveats covering these types of conversation, so you should have expert legal advice before you start.
• Our employment team has extensive experience of advising on protected conversations, so we can help ensure your company’s position is properly safeguarded.

Are you thinking of using a settlement agreement to terminate an employee’s employment? Then you should make sure you negotiate using a protected conversation.

What is a protected conversation?

A protected conversation is a private discussion between an employer and an employee that is protected by law. These conversations are confidential and cannot be used as evidence in an employment tribunal. They are used to have an open and honest discussion about sensitive issues, such as performance, conduct, or termination of employment, without fear of the information being used against either party.

Why would a protected conversation be relevant to my business?

Businesses commonly find themselves in a difficult relationship with a particular employee and you would rather seek to part ways amicably, than enter a formal disciplinary procedure. However in these situations there is not always an existing, dispute between the parties and therefore the company cannot rely on having a “without prejudice” conversation.

If the conversation between the parties about the employee’s settlement agreement is not classed as a protected conversation or a without prejudice conversation, the employee may be able to argue that they were effectively being asked to resign, meaning they could attempt to bring a claim for unfair constructive dismissal.

Alternatively, even if the employee does not resign as a result of this conversation and you consequently decide to bring disciplinary action against them, they may be able to argue that any resulting sanction was already determined and therefore not fairly decided. Therefore it is extremely important to make sure these types of conversations are approached and conducted correctly.