Holding a protected conversation

We set out some key tips for employers when holding a “protected conversation”.

What is a protected conversation?

In a nutshell, a protected conversation is a discussion between an employer and an employee (usually initiated by the employer) which is held with a view to negotiating the employee’s exit from the business. For example, an employer may have concerns about an employee’s performance, and rather than going through a protracted performance management process, it may wish to give the employee the option of bringing their employment to end on agreed terms, usually in return for a settlement payment. The conversation is “protected” because, provided certain rules are complied with, the contents of the conversation are “off the record” and cannot be referred to in any subsequent Employment Tribunal proceedings.

Graham v Agilitas IT Solutions Ltd

In this case, the employer held a discussion with the employee about his poor performance, which the employer characterised as a protected conversation. The employee made some inappropriate comments during the discussion which the employer then used as the basis for disciplinary action. The employee claimed that the employer had behaved improperly during the discussion, by threatening him. In defending the employee’s claim, the employer argued that the content of the protected conversation was inadmissible and could not be relied on by the employee. However, the court decided that it was “all or nothing”. The employer could not waive protection for parts of the discussion, using it as the basis for disciplinary action against the employee, and at the same time try to use the discussion to “shield” its own conduct.

The case highlights one of the pitfalls in holding a protected conversation. It is also a reminder that protected conversations in general need to be handled very carefully. Here are some key points for employers to bear in mind:

  • There are some types of claim that cannot be covered by a protected conversation, such as discrimination or whistleblowing claims. 
  • Any “improper conduct” by the employer will mean the conversation is no longer protected. So, employers need to handle the discussion appropriately and take care not to say the wrong thing. Clearly, bullying the employee would be “improper conduct”, as would telling the employee that if they do not agree to leave, they will be sacked.
  • The offer the employer makes to the employee (usually a financial offer) should be considered carefully. The offer should be attractive enough to persuade the employee to take the exit option, and this should be communicated to the employee in the right way.
  • It is a good idea for an employer to follow up a protected conversation in writing, to confirm what was discussed. The employer should make sure the follow up letter is drafted carefully, so that “protection” is not lost.
  • The employee should be given a reasonable time frame to consider their response to a protected conversation. Ideally, Acas advises 10 days. 
  • In most cases, the employer will require the employee to enter into an appropriately drafted settlement agreement, to record the terms of the employee’s departure.
JR BW July 2017

Jonathan Royle

Senior Associate