Protected conversations: are you doing them right?
Most HR professionals have heard of ‘protected conversations’, but fewer appreciate the limits of that protection, and getting it wrong can be an expensive mistake.
Section 111A of the Employment Rights Act 1996 allows pre-termination discussions to be kept out of ordinary unfair dismissal claims. The idea is simple – both sides can speak frankly about settlement without those words coming back to haunt them in a tribunal. In practice, it is rarely that straightforward.
In this article, we explore the hidden risks of protected conversations, where legal protection can fall away, and how HR teams can handle settlement discussions with confidence.
Where the protection starts and stops
In Gallagher v McKinnon Auto and Tyres, an employee was called to what he believed was a return-to-work meeting, only to be handed a settlement offer and given 48 hours to decide. The Employment Appeal Tribunal (EAT) held this did not amount to improper conduct, at least in a genuine redundancy context. Telling an employee their role is at risk is not the same as threatening dismissal to coerce acceptance of an offer.
In Tarbuc v Martello Piling Ltd, the EAT confirmed that the tribunal made two errors when concluding that a conversation was ‘protected’ and excluding reference to it from all the claimant’s claims. First, it excluded the protected conversation from claims it had no business excluding it from, section 111A only covered the claimant’s ordinary unfair dismissal claim, not the wages claims or part-time worker rights running alongside it. Second, it failed to look at the full picture when assessing improper conduct, the employee had been approached in a corridor and ushered straight into the meeting without warning or a companion.
Practical steps for HR
The practical lessons are straightforward:
- Give reasonable notice of any meeting
- Allow a companion where appropriate
- Do not assume protection extends beyond unfair dismissal
- Train line managers – most problems start there
- Document everything, on the basis that records may be disclosable in other claims
When in doubt, take advice before the conversation – not after it goes wrong.
Here to help
Our Employment team at Longmores helps employers manage protected conversations, settlement discussions and termination processes in a way that reduces the risk of claims and avoids unnecessary disputes.
If you need advice on handling a protected conversation or preparing for settlement discussions, please contact Miranda Mulligan, Senior Solicitor, in our Employment Law team.
Please note, the contents of this article are provided for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.
