Employment law update – June 2019
employment | 28.06.2019
Are you thinking of using a settlement agreement to terminate an employee’s employment? Then you should make sure you negotiate using a protected conversation.
Protected conversations were introduced in 2013. They 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.
This means you can 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 inadmissible as evidence in any later claim for unfair dismissal.
Businesses commonly find themselves in a difficult relationship with a particular employee and you would rather seek to part ways amicably, than enter a formal disciplinary procedure. However in these situations there is not always an existing, dispute between the parties and therefore the company cannot rely on having a “without prejudice” conversation.
If the conversation between the parties about the employee’s settlement agreement is not classed as a protected conversation or a without prejudice conversation. The employee may be able to argue that they were effectively being asked to resign, meaning they could 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.Therefore it is extremely important to make sure these types of conversations are approached and conducted correctly.
As mentioned above you can only hold a protected conversation in certain circumstances.
By seeking advice before engaging in a conversation with an employee about terminating their employment, we can help ensure it is appropriate to have a protected conversation and that you are able to satisfy all of the caveats required. Ensuring the protected conversation is approached and conducted correctly will reduce the risk that the employee is later able to rely on the conversation in any subsequent unfair dismissal proceedings.
Our team will give you detailed advice on how to conduct a protected conversation based on your company’s and the employee’s circumstances. We have considerable experience of advising all types of companies on protected conversations, so we can help ensure that both your company and your conversation are protected.
employment | 28.06.2019