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""They provide great advice and support in terms of responding and helping us in understanding the process.""

Chambers and partners 2017

""Katherine is able to relate to us and make her advice very understandable""

Chambers and partners 2017

"Naomi Greenwood is held in high regard by clients for her "consideration and clear depth of experience,""

Chambers and partners 2017

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Protected conversations

Are you thinking of terminating an employee's employment under a settlement agreement?

Protected conversations allow employers to engage in a conversation with an employee with a view to terminating their employment under a settlement agreement without the employee being able to rely on the details of the conversation as evidence in an unfair dismissal claim. However, employers can be prevented from arguing that a conversation should be considered as protected based on a range of important caveats.

It is important you are aware of these caveats and how to manage them, we are able to provide detailed advice in relation to how to conduct a protected conversation based on your company’s and the employee’s circumstances.

What are protected conversations?

Protected conversations were introduced in 2013 and allow employers to engage in a conversation with an employee with a view to terminating their employment under a settlement agreement without the employee being able to rely on the details of the conversation as evidence in an unfair dismissal claim.

Therefore you are able to discuss an employee’s termination of employment, including possible settlement amounts, even if it is not in relation to an existing dispute knowing that such conversations would be considered “without prejudice” to a court or tribunal.

Why would a protected conversation be relevant to my business?

Businesses commonly find themselves in a situation where things are not working out with a particular employee but as you are not in dispute with this employee you would rather seek to part ways amicably rather than enter a formal disciplinary procedure. Should the conversation not be classed as a protected conversation, and therefore not be considered without prejudice, then the employee may be able to argue that they were effectively being asked to resign meaning that the employee may attempt to bring a claim for unfair constructive dismissal.

Alternatively, even if the employee does not resign as a result of this conversation and you consequently decide to bring disciplinary action against them, they may be able to argue that any resulting sanction was already determined and therefore not fairly decided.

Why would I need legal advice before entering into a protected conversation?

Employers can be prevented from arguing that a conversation should be considered as protected based on a range of important caveats. These caveats are relatively wide and consequently may mean that a conversation which you thought would be classed as without prejudice actually would not be, meaning that it can be used as evidence in a subsequent unfair dismissal claim.

By seeking advice before engaging in a conversation with an employee in relation to terminating their employment, we can help to ensure that you are able to satisfy all of the caveats and feel confident that your conversation would be considered without prejudice.

How can Moore Blatch assist you?

Our team will be able to provide you with detailed advice in relation to how to conduct a protected conversation based on your company’s and the employee’s circumstances. We have a great deal of experience in relation to advising companies of various sizes on protected conversations therefore we can help to ensure that both your company and your conversation are protected.

For more information please contact Katherine Maxwell or Naomi Greenwood.

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