12th September, 2016
Dismissals & Protected Conversations
Many employers are naturally cautious when using “protected conversations” as introduced in 2013 to allow employers and employees to discuss termination of employment on agreed terms.
A protected conversation is when the employer and the employee agree that claims for unfair dismissal can not be pursued after their discussions on a protected conversation basis so that the employer and the employee can discuss potential terms of departure.
The Employment Appeals Tribunal (EAT) has given its first appeal judgement on protected conversations in a case called Faithorn Farrell Timms LLP – v – Bailey UK EAT/0025/16/RM. The EAT confirmed that Without Prejudice discussions are not applicable to protected conversations, and that the two are distinct. Whilst most lawyers have understood this distinction since the introduction in 2013 of protected conversations, a large number of non-legal advisors have been concerned and confused by which principles apply. If you are conducting a protected conversation as an employer, it is important that you secure agreement to hold a protected conversation under Section 111(a) of the Employment Rights Act 1996 (as amended by the 2013 changes) and that the employee agrees. It is also important that the employer recognises this only applies to unfair dismissal claims, and therefore, claims for discrimination, whistleblowing etc. will be excluded from this protection.
The Faithorn Farrell Timms case has confirmed that the protection extends not just to the content of the protected conversation (e.g. an offer), but also the fact of them taking place at all. This is far broader than the Without Prejudice discussion protection, and employers can increasingly seek to use protected conversations with confidence.
Since the introduction of protected conversations the team at Aaron & Partners have advised numerous firms on the appropriate use of protected conversations, and enabled many employers to deal with sensitive situations effectively, both in terms of the discussions with the employee who they wish to depart, and commercially effectively by adopting the right negotiating strategy.
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