Most HR professionals have heard of ‘protected conversations’. But do you know where the protection ends?
Section 111A of the Employment Rights Act 1996 allows pre-termination discussions to be kept out of ordinary unfair dismissal claims. The idea is simple: both sides can speak frankly about settlement without those words coming back to haunt them in a tribunal. However the rule doesn’t apply if a later claim involves discrimination or harassment issues, automatically unfair dismissal, or if there is any improper behaviour by either party.
Gallagher v McKinnon Auto and Tyres
In Gallagher v McKinnon Auto and Tyres Ltd, an employee was called to what he believed was a return-to-work meeting, only to be handed a settlement offer and given 48 hours to decide. The Employment Appeal Tribunal (EAT) held that on the particular facts, and as it was at that stage only a verbal offer, this did not amount to improper conduct – at least in a genuine redundancy context. Telling an employee their role is at risk of redundancy is not the same as threatening dismissal to coerce acceptance of an offer.
Tarbuc v Martello Piling Ltd
In Tarbuc v Martello Piling Ltd, the EAT confirmed that the tribunal made two errors when concluding that a conversation was ‘protected’ and excluding reference to it from all of the Claimant’s claims.
First, section 111A only covered the Claimant’s ordinary unfair dismissal claim, not the wages claims or part-time worker rights running alongside it.
Second, it failed to look at the full picture when assessing improper conduct. The employee had been approached in a corridor and ushered straight into the meeting without warning or a companion.
5 practical lessons for HR:
- Give reasonable notice of any meeting
- Allow a companion if appropriate
- Do not assume protection extends beyond unfair dismissal
- Train your line managers – many problems start there
- Document everything, on the basis that records may be disclosable in other claims
When in doubt, take advice before the conversation – not after the process goes wrong.
Further reading
- Discussing and negotiating an offer – ACAS
- Settlement agreements – ACAS
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