Protected conversation script template5 min read
Our Protected Conversation Script Template facilitates sensitive discussions, allowing employers to explore options without risk of legal recourse.
If you wish to hold a protected off-the-record conversation with an employee about potentially ending their employment on agreed terms, use this model script.
What is a Protected conversation script?
This discussion is an important step in proposing a settlement agreement, which is a legally binding agreement between an employer and an employee which usually settles an employment dispute or ends the employment relationship on agreed terms.
A protected conversation can take place either over the phone, in person or via written communication.
It's important to note that the conversation can be very fluid depending on the attitude of the other party, so no outcome can be guaranteed. This script is a guide to ensure that you convey the key points. It is best utilised after reading our guide to off the record or protected conversations.
What are the best practice implementation milestones / timescales?
|Identify Need for Conversation
|As employee concerns or changes arise
|Plan and Prepare for Conversation
|Conduct Protected Conversation Using Script
|During the meeting
|Address Employee Concerns
|During the conversation
|Follow Up with Settlement Agreement
|After the conversation
What legal and best practice aspects should employers be aware of?
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.
Protected conversation Script [Delete this line]
Hello [employee name], thank you for taking the time to speak with me today. I'd like to have this conversation under what is called a 'protected conversation.' [as defined in section 111A of the Employment Rights Act 1996 (ERA).]
This means that anything we discuss during this conversation cannot be used against the company in any future employment tribunal or court proceedings, provided that there is no discrimination, harassment or victimisation.
The purpose of this conversation is to discuss your situation and explore any options for moving forward. Please feel free to speak openly and honestly.
Is this OK with you?
[Purpose of meeting]
I would like discuss the possibility of a mutually-agreed amicable termination of your employment with [company].
We have had a number of concerns [outline concerns], including most recently [detail], and we are now at the point of [commencing disciplinary proceedings/specify other procedural milestone] regarding this, however we wanted to explore with you the possibility of a settlement agreement.
A settlement agreement is a legally binding document that outlines the terms of the agreement between the parties involved. Typically, it would include a financial settlement and an agreement that the employee will not bring any further claims against the company. We would like to discuss the terms of the settlement agreement with you and see if we can come to an agreement that works for both parties.
What we are proposing is:
[OUTLINE THE OFFER, INCLUDING:
- Proposed termination date
- Any proposed sum compensating for loss of employment
- Notice period and whether you will be required to work it
- Whether a good reference is included
- Anything else relevant]
We would like you to consider our offer, and to let us know in [10 days/other timescale]. If the offer is acceptable to you, we will arrange for a settlement agreement to be drafted and will meet the cost of you having this agreement reviewed by a solicitor.
Thank you for speaking with me today. We believe that a settlement agreement would be the best course of action for both parties, and we will work with you to finalize the terms of the agreement. If you have any further questions or concerns, please feel free to reach out to us.
Guide to off the record or protected conversations
Our Guide to Off the Record or Protected Conversations provides comprehensive insights on handling confidential discussions, ensuring legal compliance and effective communication.
Settlement agreement cover letter template
Use this model letter when you have reached a settlement agreement with an employee who will be leaving your employment as a result, to enclose the settlement agreement.
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