6 May 2016: ‘Off the Record’ Protected Conversations:

Employers can now have ‘Protected Conversations’ with employees, off the record, for the purposes of pre-termination negotiations with a view to ending employment on agreed terms. (s111A ERA96)

Such Protected Conversations will be inadmissible in any Employment Tribunal proceedings, unless anything was said or done which was improper. This is different from ‘without prejudice’ conversations which can be used once there is an existing dispute.

In Gibbs v Leeds United, reported this week, the High Court held that an employee’s willingness to negotiate a termination package does not prevent him from bringing a claim of constructive dismissal. It was not a breach of contract to start to talk about consensual termination. It was beside the point that the employee said he was willing to leave on terms to be agreed.

Employers need to be careful when having Protected Conversations. In any event, it would be wise to:

Mark up any communications ‘Protected Conversation S111A Employment Rights Act 19996 and/or Without Prejudice, Subject to Contract’
Not to do or say anything that would be embarrassing if it came out in Tribunal proceedings (like ‘take the severance or we’ll sack you’).

Reculver Solicitors advises on employment law matters including constructive dismissal, severance negotiations and Settlement Agreements.