Perfecting the Protected Conversation

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You’ve all been there, the employment relationship just isn’t working. There are many reasons, the role has changed, the needs of the business have changed, the employee isn’t performing or the team just aren’t getting on. The question then is, how on earth do you approach this ? You may take advice and be told that you have to follow a long, drawn-out process which you neither want to do nor think the employee will welcome.

What could happen if you follow a full process?

• Will the employee go off sick?

• Might they raise a grievance?

• Will you receive a data subject access request?

• Will you still be in the same situation 6 months later with even greater discontent in the team?

The answer in so many of these types of situations is the protected conversation. An off the record discussion that, if approached and carried out properly can be a relatively quick and pain free solution. A protected conversation allows you to have an off the record chat with your employee, giving them an alternative to completing a process. It’s not a conversation whereby the employee is pushed down a certain route, threatened or given no options, it’s an alternative to explore which, when presented correctly should enable both parties to move on with a lot less stress, cost, time and upset. The employee leaves under negotiated terms and signs a settlement or Acas cot 3 agreement. This means that you have reassurance that Tribunal proceedings won’t follow.

We all accept that things don’t always work out, if that’s the case, why don’t we address them in a personable way and allow both ourselves and the employee an alternative route? If the employee doesn’t want to have protected conversation (and this is entirely their choice, in which case the normal process whether it be disciplinary, grievance or redundancy just continues), what have you lost?

• They know that you were willing to explore an alternative process. Does that really matter if your intentions were genuine and your conduct was not improper?

• They could bring the discussion to the Tribunal’s attention – not in the case of an unfair dismissal claim (unless there has been improper behaviour) but if they bring a claim for discrimination, breach of contract or whistleblowing. Again, does that really matter if all that you were doing was suggesting an alternative solution to a process?

If the employee agrees to enter into a protected discussion, then make sure that you:

• Have an offer to make to them.

• Give them time to consider it (Acas recommends 10 days but we can close matters off sooner).

• Confirm the offer in writing and make it clear who they can and can’t discuss it with.

• Encourage them to take advice and be prepared to pay for or contribute towards that advice.

• Are willing to be flexible.

These discussions shouldn’t take place without you taking legal advice. The costs of getting it wrong far outweigh the costs of getting it right. An example of how not to do it, was seen in a recent Tribunal case in which the manager had said;

knowing you as I do….your skill set will not sit within that new structure

“I think that it could lead ultimately to performance management

I am trying to offer you a way out of this that allow you to leave with dignity

It was held that the conversation was not protected because of the manager’s improper behaviour. That conversation cost the company £95,000 as it was held that the employee was unfairly (she resigned after the conversation) and wrongfully dismissed

For the solution to those difficult employment issues, please don’t hesitate to contact our Employment team.

(June 2022)