On 29 July 2013 the government introduced the concept of “protected conversations” which allows for employers and employees to have discussions about the ending of the employment relationship. The concept is to extend the “without prejudice” rule in circumstances where there is no dispute.
However a protected conversation will only apply in cases of unfair dismissal. Therefore there are certain circumstances that employers will not be protected from possible employment tribunal claims. These include:
• with any discrimination complaint, whistle blowing complaint, complaint of automatic unfair dismissal, or breach of contract claim will not be covered. If any such claim is conjoined with the ordinary unfair dismissal claim, in practice the tribunal is likely to hear evidence about the discussions.
• Any discussion which is not “with a view to the employment being terminated on agreed terms”. It will therefore be important that the discussion is not simply cataloguing the difficulties experienced with the employee; it must be a constructive dialogue with a view to a settlement.
• Even if the discussion includes the making of an offer in exchange for the employee’s exit, there remains the possibility that the employee is offended by the conversation and that they regard it as unfair. In those circumstances, the employee may seek to raise a grievance concerning the discussion. It would usually be regarded as a breach of trust and confidence not to hear and address a grievance which might result ultimately in a constructive unfair dismissal claim. It may be unrealistic in practice to imagine that in such a constructive unfair dismissal claim the tribunals will be willing to exclude evidence of the original discussion which will forma an important element of the case.
• “improper behaviour” (in the opinion of the tribunal) will not be covered by the rule. This is not defined in the legislation, and will require to be established through caselaw.
Therefore, employers should be wary about how they approach any discussions they intend to have with underperforming and difficult employees otherwise discussions could be used against them.