1-2-3 Pre-termination negotiations or ‘protected conversations
Want to have a conversation suggesting a member of staff leaves?
You may be able to use the ‘protected conversation’ legislation to keep this confidential and out of the Tribunal.
Here’s what you need to look out for, and do.
1. How the ‘protected conversation’ legislation can help
- Having frank and open discussions with employees about them leaving, for instance because they have been performing poorly, should be much easier now.
- This is because legislation has been put in place making it possible for employers to have these conversations with their staff – most of the time – without fear of the conversation being taken to court as evidence of poor treatment, or constructive dismissal.
2. How it can’t help
Only straightforward unfair dismissal is covered by the new legislation.
- Confidentiality will only apply to ordinary, straightforward, unfair dismissal proceedings. This means that, if there are any other issues you should not count on the conversation being kept confidential.
- So if, for example, you want to move an employee on simply because their behaviour is poor and there is no underlying reason for the behaviour, doing so could only potentially give rise to an unfair dismissal claim. The conversation would be protected.
- However, if the employee were to argue that you really want to move them on e.g. for whistle-blowing or discrimination reasons, then the conversation will not be protected. This is because these issues could give rise to automatically unfair dismissal or discrimination claims.
The conversation must be with a view to termination of employment. So the legislation can’t help with day to day management.
There is no protection if there has been any “improper” conduct by the employer.
- Other than the obvious improper conduct (discrimination, harassment, assault, victimisation etc.) this can also include putting undue pressure on the employee.
- Undue pressure includes giving them a short amount of time to consider any settlement proposals you have put forward. ACAS recommends at least 10 days.
- It also includes giving them no option but to resign.
- ACAS Guidance also recommends that employees should not be allowed to be accompanied to these meetings. If you do not, it may be easier for them to argue that you behaved improperly.
3. Practical tips
- Be very clear about the reason for the conversation. This is so that the employee will find it difficult to argue it is not a straightforward unfair dismissal issue. Have this in writing.
- Be clear that termination is being considered. Bring a draft settlement agreement to the meeting with you so that there is no doubt about this.
- Use reasonable deadlines and do not suggest that the employee will be dismissed or suffer in any way if they do not sign. This is to avoid undue pressure and ‘improper conduct’.
- Follow a formal procedure before entering into the discussion. This will give you negotiating leverage and boost your argument that the only issue would be unfair dismissal. So, if this is a case of poor performance for instance, make sure you have followed some sort of performance improvement programme before going into the meeting.
Our experienced solicitors would be delighted to discuss this process with you, so please give us a call with any questions.
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