When does a protected conversation lose its protection?

Your employer can have an “off the record” conversation with you regarding the termination of your employment in the knowledge that such a conversation is in certain circumstances “protected”.

Any offer your employer makes to you relating to the termination of your employment will normally be recorded in a settlement agreement.  The pre-termination negotiations and terms of settlement are protected in so far as they cannot be used by you in any subsequent employment tribunal claim for unfair dismissal, under sections 111A(2) and (3) of the Employment Rights Act 1996 (ERA).

Section 111A states:

• Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111.This is subject to subsections (3) to (5).
•  In subsection (1) “pre-termination negotiations” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.
• Subsection (1) does not apply where, according to the complainant’s case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.
• In relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.
• Subsection (1) does not affect the admissibility, on any question as to costs or expenses, of evidence relating to an offer made on the basis that the right to refer to it on any such question is reserved.

What claims will not be covered by a protected conversation?

Certain protected conversations are not covered by section 111A of the ERA and these relate to complaints of:

• automatically unfair dismissal, such as, whistleblowing, union membership, health and safety or asserting a statutory right;
• discrimination, harassment, victimisation or other treatment prohibited by the Equality Act 2010; and
• breach of contract or wrongful dismissal.

Therefore, if your claim relates to dismissal it is essential that is properly pleaded to show that it is not one of ‘ordinary’ unfair dismissal but ‘automatically’ unfair dismissal.  If you fail to do this, you will run the risk that a tribunal will exclude all matters relating to pre-termination negotiations.

However, if there is an ongoing dispute between you and your employer then certain conversations may still be covered by what is called the “without prejudice” rule.

What if the protected conversation amounts to improper behaviour?

The Acas Code of Practice – Settlement Agreements provides a non-exhaustive list of improper conduct, which includes:

• all forms of harassment, bullying and intimidation, including the use of offensive words or aggressive behaviour;
• physical assault or the threat of physical assault and other criminal behaviour;
• all forms of victimisation;
• discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership; and
• putting undue pressure on a party (e.g. an employer saying before any form of disciplinary process has begun that if a settlement proposal is rejected then the employee will be dismissed).

Where there is improper behaviour by your employer then anything said or done as part of the pre-termination negotiations may be admissible as evidence, providing the tribunal considers it just to do so (section 111A(4) of the ERA).

In the recent case of Harrison v Aryman Limited UKEAT/0085/19, where there is a dispute about what was discussed during a protected conversation, a tribunal must be satisfied that whatever behaviour did occur meets the legal concept of improper behaviour. If so, then a tribunal will consider the extent, if any, to which it is just to permit reference to the pre-termination negotiations to be admitted.

For example, if you bring a claim for constructive unfair dismissal and seek to rely on your employer’s conduct, including pre-termination negotiations, to show that this amounted to a breach of the implied term of trust and confidence, it is essential that this conduct is clearly pleaded, and the tribunal is aware of this before deciding to either admit or to exclude it.

Conclusion

Whether conduct during a protected conversation amount to improper behaviour will not always be obvious or what appears to be obvious may not be admissible.  Therefore, it is essential proper legal advice is sought before embarking on a tribunal claim.