Looking for a way out? ‘Protected Conversations’ and how to initiate one with your employer.

A protected conversation is an ‘off-the-record’ chat between you and your employer about bringing your employment to an end on agreed terms.

While employers tend to initiate protected conversations, the law empowers both employers and employees to do so. It can avoid lengthy internal processes, such as disciplinaries or performance management processes, and instead obtain an agreed exit package.

Why is a protected conversation useful?

A protected conversation allows you to explore the possibility of a settlement

agreement with your employer.

Both parties are empowered to talk freely without the risk of legal implications; nothing that is said can be used by either side as evidence in any subsequent unfair dismissal claim.,

These discussions are often initiated by employers before formal disciplinaries or

redundancy procedures are implemented to promote a course towards a mutually-agreed resolution.

Formal proceedings can otherwise be both lengthy and costly. By avoiding these at an early stage, your employer will be saving time and money and may be more likely to reach a mutually agreed settlement.

There is no reason, however, why you, as an employee, cannot initiate a protected conversation if you are unhappy in your role. This may be because of issues you intend to raise (or have raised) in a grievance, performance concerns, personality clashes or changes within the structure of the business or redundancy.

This will allow your employer to understand why you might be looking to terminate

your employment.

Are there any exceptions within a protected conversation and how do I begin the process?

If there has been any improper behaviour, such as bullying, harassment, or

discrimination, or unfair pressure during these conversations this can be used as

evidence during an unfair dismissal claim.

Again, it is important to note that the protected conversation rule only applies to

unfair dismissal claims and not to other types of claims such as discrimination or

breach of contract.

Neither party is legally obligated to have a protected conversation if invited to do so

by the other but both parties have nothing to lose by listening to what the other

has to say.

You can also initiate a protected conversation by way of an email, referencing section 111A of the Employment Rights Act 1996, suggesting that the meeting is

conducted by way of a protected conversation and by letting your employer know

that details of the conversation will be kept confidential.

You do not need to seek legal counsel at this point, but you can bring in a

companion to any meeting. Employers aren’t legally obliged to allow you to be

accompanied but it is ‘good practice’ and most will usually do so.

You can, of course, seek legal advice, and will likely be required to do so by your

employer before you accept any settlement agreement. Legal support is usually paid

for by the employer.

If your employer is unfamiliar with protected conversations, then you can refer them

to the following website, which has more information about the process.

Top Tips to Prepare for a Protected Conversation

Preparation is key. You will need to spend time considering the outcomes you would

like from a settlement agreement such as:

• Why are you looking to terminate your contract?

• How much are you proposing by way of financial, and what is this based on?

• What is your notice period?

• Do you want to work your notice period or be placed on garden leave?

• Do you want an agreed reference?

• Do you require support in finding a new job?

• What happens if you can’t reach a settlement agreement?

Always ensure you seek legal advice if you are unsure about the proposed terms of

any settlement agreement. It is best to ensure that settlement proposals are given in

writing and that you allow a reasonable period for your employer to consider your

offer.

Remember that although a tribunal claim may lead to a bigger financial settlement,

there is always a risk that you won’t be successful or will receive a smaller pay-out.

Legal proceedings are also stressful, costly, and very time-consuming.

An agreed settlement avoids lengthy internal processes settlement, will likely cost you nothing and you may be to agree on additional benefits like a reference and support in finding a new job.

Stay positive and stick to the facts and what you hope to achieve.

If you would like any further advice or wish to discuss legal support for a settlement or tribunal, contact Sara Mayhew at sara@sara-mayhew.co.uk