Last Updated on 4.8.22 by Amanda Isherwood
Negotiating the exit of an employee is an often difficult situation every employer will have to face at one time or another.
So when this scenario does occur, managing the transition in the most efficient and amicable way possible should always be the ultimate aim.
The best way to do this is by engaging the employee in a protected conversation. Protected conversations were introduced in 2013 to allow employers and employees to speak in an off the record conversation with a view to agreeing on the exit of an employee through a settlement agreement.
The primary benefit of engaging an employee in a protected conversation is the confidential nature of the discussion. What’s said in these meetings cannot be used as evidence in any subsequent employment tribunal, and the protected nature of the discussions cannot be waived during or after. The inadmissibility of protected conversations and the terms of any settlement agreement is enshrined in section 111A of the Employment Rights Act 1996 (ERA).
A settlement agreement is made between the employer and the employee, however, the employee may want to involve someone else in the discussion(s). Whilst this isn’t a legal requirement, they should always be allowed the option to attend the meeting with a work colleague, trade union official or trade union representative. This is good practice and may ultimately help in the progression of settlement discussions.
For protected conversations to remain protected, retaining their inadmissibility in an Employment tribunal there must not be any “improper behaviour” in the negotiating process. Improper behaviour includes any behaviour that would be regarded as ‘unambiguous impropriety’ – The ACAS Code of Practice – Settlement Agreements (Code) provides a comprehensive list of improper conduct, which includes:
- any form of harassment, bullying and intimidation, including through the use of offensive words or aggressive behaviour
- physical assault or the threat of physical assault and other criminal behaviour;
- all forms of victimisation;
- discrimination due to sex, race, disability, sexual orientation, age, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership; and
- Putting undue pressure on the employee (for example, an employer saying that if a settlement proposal is rejected then the employee will be dismissed).
Bear in mind that protected conversations are voluntary and can be requested by both employee and employer. An employee is not obliged to participate in a protected conversation if he/she does not want to. Equally an employee does not have to accept the terms of the settlement agreement proposed by an employer. There can be a process of negotiation during which both parties make proposals and counter-proposals until an agreement is reached (or not).
After any settlement agreement offer, its important allow the employee sufficient time to consider the terms and make their decision.
As experienced providers of clear, easy to understand settlement agreement legal advice, our team will be more than happy to discuss your requirements over the phone, via e-mail or during an initial, face-to-face meeting.