In 2013 the law changed with the introduction of ‘Protected Conversations’. The idea being that employers should be able to have conversations with employees to try to resolve issues before they turn into actual disputes.
Prior to the change employers would often avoid having discussions with employees whilst they were still employed for fear that the conversation could be used against them if, for example, they took steps to discipline or dismiss an employee later.
Now employers can have a protected conversation and provided they follow certain guidelines the conversation cannot be referred to in any subsequent claim for unfair dismissal.
It is also important to note that any ‘improper behaviour’ during the discussions can still be referred to in any later tribunal proceedings. Therefore, it is important to behave fairly in the discussions, ensuring that you make it clear that the employee’s decision on the offer will not impact on any decision or action taken later.
The employee should know that they are free to consider the offer and reject it if they wish with no impact or effect upon them.
The process I recommend that you follow during a ‘Protected Conversation’ is as follows:
- Introduce those present at the meeting. An employee does not have the legal right to be accompanied at this meeting, however you may decide that it will assist discussions if they are accompanied by someone appropriate. Many employers however would prefer the settlement discussions are confidential and for this reason do not permit employees to be accompanied by colleagues.
- Inform the employee that the meeting is to be ‘without prejudice’ which means that it is off the record, and it is intended that the discussions are covered by section 111A of the Employment Rights Act 1996.
- Explain that this means that the offer and any subsequent discussion or negotiations may not be used as evidence in any subsequent unfair dismissal claim.
- Inform the employee that if they decide to reject the offer it will not impact on them negatively and you will of course follow a fair and reasonable process in future. Its at this stage it would be worth while advising the employee that they might require legal advice and if accepted you will contribute towards their legal costs, but only if agreement is reached.
- Tell the employee how long they must consider the offer. The period they have should be reasonable and as a rule ACAS recommend 10 calendar days. If you decide that you do not want the employee to work whilst they are considering the offer, then tell them they are not required to attend at work and are on paid leave until the deadline for responding.
- Advise the employee that the offer must remain confidential, and they should not discuss with colleagues, however they are permitted to discuss with their legal adviser and spouse or partner.
- Ask the employee if they have any questions. Try not to get into a lengthy debate, and if required to speak to their Legal representative.
- Give the employee a letter which explains offer in principle. At this point you can give them just the offer details or the offer and a Settlement Agreement for them to seek legal advice on and sign. If you just provide the offer, you can probably reduce the time, they must consider the offer and ask them to say yes or no in principle, if they say yes then you give them the Settlement Agreement to take and get advice.