Protected conversation script template

When having a 'protected conversation' with an employee, an employer must be aware of several UK employment laws. Here are some of the key considerations:

• Unfair dismissal: An employer cannot use a protected conversation as a means of pressuring an employee into resigning, nor can they use it as a shield against a claim of unfair dismissal. If an employee is dismissed, they may still bring a claim for unfair dismissal if the dismissal was discriminatory or based on a protected characteristic (such as age, gender, or race).

• Discrimination: An employer must not use a protected conversation to discuss any discriminatory issues with an employee, such as their age, sex, disability, religion, or sexual orientation.

• Confidentiality: Any discussions held during a protected conversation should be kept confidential between the employer and employee. However, if the employee raises a grievance or files a claim, then the details of the conversation may be disclosed in any subsequent proceedings.

• Statutory rights: An employer cannot use a protected conversation to ask an employee to waive their statutory employment rights, such as the right to receive a redundancy payment or the right to take parental leave.

• Legal advice: An employer should encourage the employee to seek independent legal advice before entering into any settlement agreement arising out of a protected conversation.

The above considerations ensure that the ACAS Code of Practice on Settlement Agreements is adhered to when offering a settlement agreement to an employee. If an employer fails to follow the Code, it may be taken into account by an employment tribunal when deciding any claim brought by the employee.

During the discussion itself the employer can refer to the relevant legal section and piece of legislation, namely section 111A of the Employment Rights Act 1996, but does not have to.

Section 111A of the Employment Rights Act 1996 (ERA) provides for "pre-termination negotiations" or "protected conversations" between employers and employees.

These conversations can take place between an employer and employee where there is an existing dispute or where the employer is considering terminating the employee's employment. The purpose of the conversation is to explore the possibility of reaching a settlement agreement to bring the employment relationship to an end on agreed terms.

The key feature of Section 111A is that any offers or discussions made during the protected conversation cannot be used as evidence in any subsequent unfair dismissal claim, except in certain circumstances. For example, if there has been improper behaviour during the protected conversation, such as discrimination, harassment or undue pressure, then the employee may be able to use this as evidence in any subsequent claim.

It is important to note that Section 111A does not protect employers from claims of discrimination, whistleblowing or other claims that may arise outside of the context of the protected conversation. Therefore, employers should exercise caution and seek legal advice before entering into any settlement agreement or making any offer to an employee during a protected conversation.

A conversation can still be protected even without this section being referenced, but it helps if it is.

Scenario: Negotiating Exit Terms through Protected Conversation

At ABC Limited, a longstanding employee named Sarah, who has been with the company for over a decade, is experiencing performance issues that have persisted despite managerial intervention and support. Recognising the need for a mutual agreement on her departure, HR Manager John approaches Sarah and suggests initiating a protected conversation to discuss the performamce issue, and to explore exit terms in a confidential and non-confrontational manner.

Initiating the Conversation

John approaches Sarah and explains the purpose of the protected conversation, highlighting that it provides a confidential setting to discuss potential exit arrangements without the conversation being used against either party in future legal proceedings. Sarah agrees to participate, understanding that the conversation is intended to explore mutually beneficial solutions for both parties.

Discussion of Performance Concerns

John addresses the performance issues affecting Sarah's role, providing specific examples and feedback gathered from performance evaluations and managerial observations. He acknowledges Sarah's contributions to the company but stresses the importance of addressing the performance issues to meet the company's expectations.

Exploring Exit Terms

John broaches the topic of potential exit arrangements, by way of a settlement agreement. He outlines the benefits and considerations associated with each option, including financial compensation, notice periods, and any post-employment support.

Negotiating Terms

John and Sarah engage in a constructive negotiation to determine exit terms that are fair and acceptable to both parties. They discuss the terms of the settlement agreement, including financial compensation, benefits continuation, reference provisions, and any additional support or assistance from ABC Limited. After thorough discussion and negotiation, John and Sarah reach a draft agreement on the exit terms that meet their respective needs and preferences.

Follow-Up Actions

John follows up the protected conversation with a written summary of the agreed exit terms, including the terms of the settlement agreement and any additional provisions. He advises Sarah to review the document carefully before an agreed deadline, and seek legal advice before signing.