Protected Conversations

Kim Nicol

Mediator, Employment Law Attorney, Dispute Resolution Adviser, HR Consultant

You may be aware that certain discussions with an employee about the possibility of bringing their employment to an end are classed a Protected Conversations.

This means that neither the employer nor the employee can refer to it or rely on what was said if they then bring an unfair dismissal claim.

In a recent case, a branch manager for a company had been absent due to sickness. The company decided that they could manage without his post and so he was potentially redundant.

They decided to have a chat with him about this and offered him a ‘deal’, giving him 48 hours to respond.

He refused the offer and so the company went through a redundancy process and dismissed him.

He tried to use the conversation as evidence that his dismissal was pre-determined and that therefore the redundancy process was unfair.

The employment tribunal decided that the conversation was a “protected conversation” and was simply for the purposes of negotiation.

The employee appealed saying that he had been ‘taken by surprise’ by the conversation and had not agreed to it in advance. He also said that the 48 hours he had been given to consider the proposal and the fact that he had been told he would be made redundant if he did not accept the offer was unfair.

The tribunal decided that the employer had not breached any employment rules by having this conversation with him or by offering him a deal. They accepted the tribunal’s view that his role was potentially redundant and that they had gone on to handle the process fairly.

This shows that, provided you handle protected conversations carefully, they are a ‘safe’ way of raising legitimate concerns with an employee. There are lots of ways in which these conversations are misused and you should seek advice at every stage to protect your business.

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Kim Nicol

Mediator, Employment Law Attorney, Dispute Resolution Adviser, HR Consultant

I am a qualified employment law solicitor with over 25 years' experience working for the most part with employers. All businesses are vulnerable to tribunal claims from employees. My firm…