What is a protected conversation? Employees' questions answered by our employment solicitors.

My employer has mentioned a protected conversation, what does this mean?

Essentially it means that the contents of that conversation (if it is done properly) can not be relied upon in an Employment Tribunal except in very specific circumstances. 

Why would an employer hold a protected conversation?

The aim of a protected conversation is usually to allow an employer to speak freely with an employee. These conversations usually have the purpose of exploring whether the employee is interested in agreeing terms on which the employment relationship comes to an end. The conversation is ‘protected’ in the sense that it must be kept confidential and not referred to in any future employment tribunal claim.

How do I know that I am having a protected conversation?

The law provides quite specific requirements for these conversations to truly be ‘protected’ from disclosure in subsequent tribunal proceedings. If an employer does it correctly- they will be clear from the outset on the nature of the conversation as it will be important to them that you, the employee, understand the confidential nature of the conversation. 

What sort of things are discussed during pre-termination negotiations?

The employer is likely to explain why they wish to put forward an offer, or a ‘settlement package’ in return for your employment ending. There may be various reasons behind these offers, redundancy is one possible reason, sometimes it can be performance issues or perhaps a restructuring of the organisation. Sometimes the employee will never really know the real reason behind the offer. Often the employer will explain the alternative to a settlement and exit being agreed. Depending on the circumstances, the alternative might be compulsory redundancy or a performance improvement plan. 

Isn’t it all about the money?

Yes, it is likely that the employer will mention figures, they may describe a compensation amount or an ex-gratia or termination payment. They might also mention a settlement agreement. This is the type of agreement usually used to put down on paper, the payment of compensation and the terms surrounding the employee’s exit from the business. 

Do protected conversations mean my employer can say anything they like to me?

Not at all. The conversation is only protected if the employer does not behave improperly. Examples of ‘improper behaviour’ are detailed in the ACAS Code of Practice- for example an employer should not use offensive words or put undue pressure on an employee. There are also certain types of complaint which cannot be protected (such as automatically unfair dismissals and discrimination claims).

What on earth do I do if I am called into a meeting and it turns out to be a protected conversation?

Keep calm, take notes, ask questions so that you have full details of what is being proposed. Ask your employer to put the offer in writing for you. Most importantly don’t agree to anything before speaking to an employment lawyer. You might find that your employer asks you to leave the place of work to take some time to consider things, so do be prepared for this.