Pursuant to section 111A of the Employment Rights Act 1996 (ERA 1996), employers are able to conduct ‘off the record’ conversations with employees in relation to the termination of their employment in circumstances even where there is no existing dispute. This is known as a ‘Protected Conversation’.

However, this statutory protection will only apply if a claim is brought for ordinary unfair dismissal only (including constructive unfair dismissal) and there has been no ‘improper behaviour’ on the part of the employer during the protected conversation or the settlement negotiation process.

STEPS TO FOLLOW

Before the meeting

1. Consider whether the employee has any protected characteristics or may have a claim for anything else (for example, breach of contract). If so, consider whether having a protected conversation is appropriate.
2. Arrange a face-to-face meeting with the employee, giving reasonable notice. Whilst not a requirement, it may be good practice to give them the option to be accompanied by a colleague or TU representative.

At the meeting

1. Explain in neutral terms why termination discussions are being raised. If you are concerned about the employee’s conduct/performance, explain you are giving them the option to accept a settlement agreement and leave on good terms before the formal disciplinary/performance procedure commences.
2. Explain that the pre-termination discussions are ‘protected conversations’ covered by s111A ERA 1996.
3. Set out the factual alternatives if the settlement agreement is not accepted (which may be disciplinary proceedings/formal performance management). You can say that this process may result in the employee’s dismissal, however, you must not say the employee will be dismissed if they do not accept the settlement agreement.
4. You must not behave improperly, for example, say or do anything that could be discriminatory or apply any undue pressure on the employee.
5. You should take comprehensive notes of the meeting.

After the meeting

1. Follow up the meeting with a letter setting out the main points discussed along with a copy of the settlement agreement.
2. Mark all correspondence ‘Without Prejudice and Subject to s111A Employment Rights Act 1996’.
3. Give the employee a reasonable amount of time to seek advice and consider the settlement agreement - 10 days is considered reasonable. Providing insufficient time to respond may be an example of improper behaviour.

Whilst following the above procedure should protect you from falling foul of s111A, every employment situation is different and the above approach may not be the best one for you. As such, it is advisable to seek legal advice to guide you through the process.

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