A conversation would be protected if it was a conversation in which the employer made an offer to the employee to end their employment on agreed terms.
The protection would mean that an employment tribunal would not be allowed to take the conversation into account (although may presumably be told that it had taken place). However, the protection would only apply in “ordinary” unfair dismissal claims – it would not apply in cases of automatic unfair dismissal, such as whistleblowing, dismissals related to health and safety or under the TUPE regulations.
The protection will be lost if a tribunal considers that the conduct of the employer has been improper or connected with improper behaviour.
The new rule is good for employers as it will allow them to pre-empt disciplinary, performance improvement and redundancy procedures by making an offer to terminate. If the offer is not accepted they may have to go through the procedure, but the proposal will allow for conversations to become legally “off the record” in a wider variety of situations than is permitted under the “without prejudice” rule, which only applies once there is already a dispute between the parties.
What the concept of a protected conversation gives to employers in terms of potential to avoid disputes and lengthy procedures, it will arguably take away from employees: they will still be able in theory to insist on transparent processes and decision making, but against a background in which the employer will appear to have already made up its mind about the outcome.
Points for employers to consider are that:
- trying to use a protected conversation in situations other than simple unfair dismissal may not work – it will not always be possible to know in advance whether the employee may also seek to bring, for example, a discrimination claim;
- there will be considerable uncertainty over what counts as acting improperly; and
- as with the existing “without prejudice” rule, it is ultimately up to the judge to decide whether the conversation has protected status, regardless of what the parties may have agreed or said at the time.