Protected conversations were introduced in legislation in 1996 to allow employers to have an “off the record” conversation with employees. They are meant to be used when there is no ongoing dispute and where a proposal can be made to bring the working relationship to an end. It is called “protected” because this interaction (whether it is verbal or in writing) remains completely confidential and cannot be used or disclosed in any subsequent unfair dismissal proceedings before an Employment Tribunal (ET).
They have become an essential tool, but they have to be used with care to avoid further issues arising.
When are protected conversations usually used?
As mentioned above, these conversations should only be used when there is no ongoing dispute between the parties. Protected conversations are therefore likely to be used where there are performance issues, personality clashes or pending disciplinary proceedings (providing that there has been no prior interaction or dispute in relation to such matters).
Can employees refuse to have a “protected” conversation?
Yes, employees are not obliged to participate in the conversation. In this case employers must respect this decision and it is essential that treatment towards that employee doesn’t change as a result of this (as this could lead to claims of victimisation).
In this instance, if you still wish to remove an employee from the business, you need to follow another legal route such as redundancy or capability, performance, absence or sickness management.
What issues cannot be covered by a protected conversation?
It is important to be aware that not all conversations are covered by protected conversations. Conversations which are not covered are related to complaints of:
- automatically unfair dismissal, such as, whistleblowing, union membership, health and safety or asserting a statutory right;
- discrimination, harassment, victimisation or other treatment prohibited by the Equality Act; and
- breach of contract or wrongful dismissal.
In the above instances, the protected conversation are not protected can be used in evidence against you.
In addition, in order for the conversation to remain protected and to retain its confidentiality and inadmissibility in an ET, there must not be any “improper behaviour” in the process. What is considered “improper behaviour” will be decided by the ET depending on the facts and circumstances of each case. However, the ACAS code of practice provides a non-exhaustive list which includes (but is not limited to) the following:
- all forms 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 because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership; and
- putting undue pressure on a party
If any of these behaviours occur, the employee could resign and claim constructive dismissal and they would be able to refer to the “protected conversation” (i.e. anything that was said or done during the process will normally be admissible as evidence).
What is the difference between a ‘without prejudice’ conversation and a ‘protected conversation’?
If there was a prior dispute, you would approach the situation on a “without prejudice” basis, instead of having a protected conversation. Without prejudice conversations are “off the record” conversations which apply to any situation where a dispute has arisen or is anticipated. These are also confidential and cannot be used as evidence in any subsequent legal proceedings. The aim of these conversations is to try to settle the dispute.
Whilst protected conversations can be used when there is no existing dispute, without prejudice conversations cannot be used in these cases.
In some instances, it may be possible to use both approaches: without prejudice and protected conversations, but is important to consider that some parts may be disclosed depending on the specifics of the case.