Protected conversations: are you doing them right?

Most HR professionals have heard of ‘protected conversations’. Fewer know exactly where the protection ends – and that gap can be costly.

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. In practice, it is rarely that straightforward.

In Gallagher v McKinnon Auto and Tyres, 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 EAT held this did not amount to improper conduct – at least in a genuine redundancy context. Telling an employee their role is at risk is not the same as threatening dismissal to coerce acceptance of an offer.

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, it excluded the protected conversation from claims it had no business excluding it from – 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.

The practical lessons are straightforward:

• Give reasonable notice of any meeting
• Allow a companion where appropriate
• Do not assume protection extends beyond unfair dismissal
• Train line managers – most 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 it goes wrong.s are implied helps avoid surprises and reduces the risk of disputes.

About Jon Dunkley

Jon Dunkley is a Partner at Wollens and heads up the firm’s Regulatory Department. Based at our North Devon office, Jon is a highly experienced solicitor with a broad commercial and regulatory practice, supporting businesses, professionals and senior employees across a wide range of legal issues.

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Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

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