Time to talk with a degree of protection

Jane Green

Until recently ‘having a chat’ with an employee about their future employment could prove costly. Since the summer, however, things have changed. But even with new ‘protected conversations’ care must still be exercised.

IN the midst of the day-to-day challenges of running a business, staff performance appraisals and follow-up monitoring are sometimes put on the back burner. It is a strategy that could prove costly, in the absence of a paper trail to support a fair dismissal.
Until recently, when dealing with an employee no longer up to the job or no longer required, an employer would be treading on dangerous ground if he decided to press on regardless and ‘tap the employee on the shoulder’ and suggest that their future lay elsewhere. The employee could raise a grievance, resign and claim constructive dismissal, or simply argue that any subsequent performance management process was a sham, as the business had already determined they had to go. Significantly, the original conversation would be admissible in any future tribunal proceedings.
While it would be possible to have a ‘without prejudice’ conversation, this would only apply in the event of an ongoing dispute, perhaps arising during a disciplinary process, a dispute about pay, or the handling of a grievance process. Having a conversation out of the blue and saying the words ‘without prejudice’ has no legal effect and what is said is still admissible and can be used against the employer in a subsequent tribunal.

Early experience shows that this new option has been used with positive results.

The new process of ‘protected conversations’, introduced this summer, comprises a number of stages. First, the employer needs to invite the employee to a meeting. ACAS suggest that the member of staff should be allowed to be accompanied by a colleague or a trade union representative but this is not a legal requirement. Employers should consider whether this would be sensible on a case by case basis. Next, at the actual meeting, the employee should be advised that the conversation is confidential by virtue of section 111A of the Employment Rights Act 1996. The employee should then be told the reasons for the conversation and given written details of the package on offer to leave. It is important to give the employee time to consider the proposal and ACAS suggests this should be at least 10 days. If the package is acceptable, the arrangements will be finalised through a settlement agreement, which is a new name for a compromise agreement, requiring independent legal advice for the employee, paid for by the employer.
Where the employee does not wish to leave, the employer should be aware that this may create further difficulties, unless they are prepared to make an offer the employee cannot refuse.
Early experience shows that this new option has been used with positive results, saving time in lengthy performance management processes where the employer has an attractive offer to make and the parties reach agreement fairly quickly. The drop in maximum unfair dismissal compensation to a year’s pay (or £74,200 whichever is lower) may be tempering expectations.
However, a note of caution must be sounded. The new provisions do not cover any case where there is an existing dispute or claim relating to discrimination, whistle-blowing, trade union activities, or health and safety matters. Furthermore, they do not provide a safe route to follow where the employee has health issues; is pregnant; has returned from maternity leave; or has raised any complaints in the recent past. If the provisions do not apply, then the conversation can be used in evidence later against the employer.
Employers should also be aware that the actual conversation has to be carefully handled. We would not advise any manager to meet an employee alone and if there is any ‘improper behaviour’ by the employer, the protection of confidentiality will be lost. Examples would include bullying or intimidatory behaviour; rushing the employee to consider; or informing the employee they will be sacked anyway if they do not accept the offer. The offer must be open to being accepted or rejected.
Protected conversations are not always going to be a quick fix and it is entirely foreseeable that some employees will not be tempted and be very unhappy at what they hear. They may even raise a grievance or be sufficiently distressed to go on sick leave. Employers should be aware of such risks and prepared with a ‘plan B’, which will allow a proper process to address the matters of concern. However, handled carefully, with a full prior assessment of risk, protected conversations may save management time.