Making sure a protected conversation meets all the criteria to ensure you are genuinely protected

  • 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.

Why would I need legal advice before entering into a protected conversation?

As mentioned above, you can only hold a protected conversation about employment in certain circumstances.

By seeking advice before engaging in a conversation with an employee about terminating their employment, we can help ensure it is appropriate to have a protected conversation and that you are able to satisfy all of the caveats required. Ensuring the protected conversation is approached and conducted correctly will reduce the risk that the employee is later able to rely on the conversation in any subsequent unfair dismissal proceedings.

How we can help you with protected conversations

Our team will give you detailed advice on how to conduct a protected conversation based on your company’s and the employee’s circumstances. We have considerable experience of advising all types of companies on protected conversations, so we can help ensure that both your company and your conversation are protected.

We have offices in Southampton, Richmond, London, Lymington, Woking and Guildford. Contact us for specialist support.