Back on the 29th July 2013, section 111A was added to the Employment Rights Act (ERA) 1996 which allowed employers to have ‘protected conversations’ (i.e. off the record conversations) with employees prior to the termination of employment, which cannot later be used as evidence should a case be issued in the Employment Tribunal for unfair dismissal. The rule relating to protected conversations was introduced to facilitate negotiations, and the making of an offer with a view to concluding matters by way of a settlement agreement.
Prior to the introduction of ‘protected conversations’, the only method available to employers to try and ensure that pre-termination discussions were not later used against them during an unfair dismissal case was to use the common law ‘without prejudice’ rule. However, the problem with that is that the rule can only be deployed where there is an actual dispute. Where there has been no prior dispute and no issues raised in relation to the employees capability and conduct, etc, then potentially the employee was able to later refer to these discussions at Tribunal, using the matters discussed as evidence that their dismissal had been ‘pre-determined’, pointing out that the discussions had taken place prior to disciplinary proceedings being commenced and their being a live dispute, and alleging that it amounted to a breach of the implied term of mutual trust and confidence. This was the gap that the rule relating to ‘protected conversations’ was introduced to plug.
For the conversations to be protected, an employer must not engage in ‘improper conduct’, as the conversations will then lose their protected status and the employee will be able to refer to them at Tribunal. Examples of improper conduct include violence, threats, intimidation, discrimination, bullying, harassment, etc. It will ultimately be up to the Tribunal to determine whether there has been improper conduct.
In the recent EAT case of Faithorn Farrell Timms v Bailey (2016), the employee was notified that she would no longer be able to work part-time, thereby prompting her to resign. There had been discussions prior to her resignation about a possible settlement agreement, but those discussions broke down. She also lodged a formal grievance. After leaving, she commenced Tribunal proceedings for constructive dismissal and sex discrimination, within which she referred to the pre-termination discussions, which the employer responded to within their ET3 response without raising any objection to them being referenced in the ET1.
One of the issues that the EAT needed to determine was whether details of the pre-termination discussions were admissible in evidence on the basis that they were protected conversations and without prejudice.
The EAT held that the employer had waived their right to rely upon the discussions having been without prejudice, as they had failed to object to them being referred to in the ET1 and had themselves referred to them in their ET3. Nevertheless, in sending the case back to the Employment Tribunal, the EAT held that were the discussions protected conversations, then they would remain protected, as their protected status cannot be waived. The interesting point about this is that if the discussions are protected conversations, then the discussions would amount to admissible evidence in relation to the sex discrimination case (the employer having been deemed to have waived their without prejudice status), but not the unfair constructive dismissal claim. This is because the rule relating to protected conversations only applies to unfair dismissal cases.
The EAT also stated that the protection afforded by the protected conversations rule not only applies to the content of the discussions, but also to the fact that they took place and related internal discussions
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