Protected conversations are often a useful way of diffusing an issue quickly for the benefit of the colleague and the employer. However, the employer must be careful in relation to what is discussed in these conversations and how it is interpreted.
Normally any pre-termination discussions are not admissible as part of dismissal claims but there is an exception which has been highlighted recently in the case of Lenlyn UK Ltd v Kular.
The exception is where ‘Improper behaviour’ has taken place. In this case the employer attempted to carry out a protected conversation offering the chance to resign for 6 days before dismissal due to misconduct and also misrepresented the content of an external report claiming that it suggested that the employee had been grossly negligent when in fact it just suggested that a disciplinary investigation take place. The employer refused to provide a copy of the report to the employee.
The employee did resign but then claimed constructive dismissal and, at the tribunal, they ruled that there had been improper action and so the content of the protected conversation was admissible. The tribunal found the employer’s behaviour to be “improper” because they failed to allow 10 days for consideration of the settlement agreement and they misrepresented the content of the investigation (which suggested further investigation not a final recommendation).
Having regard to the content of the (non) protected conversation the tribunal (and the EAT) found that the employee had been constructively dismissed.
Improper behaviour can include timeframes, references, aggressive comments or behaviour, considerations of age, pregnancy or other forms of discrimination or presenting information in a biased or misleading manner.
Here are a few things to consider before you have a protected conversation:
- Is the issue around performance or conduct?
- Have you outlined in an unbiased manner the situation and actions that have led to you calling this conversation?
- Have you taken advice on what options could be discussed in this conversation from your HR Consultant? How you word the options is important. It may include reviews or dismissal but it’s best to get advice first.
- Make notes or document what the offer/proposal includes, be succinct but ensure you have all aspects covered, timescales, review points, pay, references, benefits. Ideally put this in writing to hand to the employee following the conversation. Your HR Consultant will be able to help with a template for this.
- Make sure you give the employee at least 10 days to consider your proposal and to obtain advice.
- You need to advise the employee that you wish to have a protected conversation, and that the discussion (and any associated correspondence) will be protected under s.111A Employment Rights Act 1996 and cannot subsequently be referred to by either party.
If you need any help with protected conversations, managing performance, grievances or dismissals speak to your HR Consultant or give one of our friendly team a call on 01924 827869.
