Since July 2013 employers have had the right to enter into a protected conversation with an employee when they are contemplating a dismissal. Are they worth it to a business though?
An employer can initiate a protected conversation at any point when a termination of employment is being considered. There is no need for there to be an active dispute before entering into a protected conversation. There could be a disciplinary procedure for conduct issues, or an underperforming member of staff, it could be a redundancy situation or a third party complaint about that employee for example.
The conversation will remain confidential in respect of any future claim in an Employment Tribunal for Unfair Dismissal, unless the employer displayed improper behaviour. A protected conversation must involve discussions with the employee before termination often including an offer made. The employee must have 10 calendar days at least to consider the offer. Any offer should be realistic and it is important you are prepared for the scenario that the employee doesn’t accept the offer.
What are the advantages to an employer? Well, firstly you potentially nip a conflict in the bud saving you time and expense. Secondly it can be an amicable way of resolving issues rather than following an adversarial procedure. Thirdly, dealing and resolving an issue in this way can help the business progress in the least disruptive manner possible.
However are there disadvantages as well?
The obvious disadvantage is that the employee does not have to engage and the problem will therefore still remain. Linked to this, having a protected conversation with an employee during the course of a disciplinary may make them defensive and feel that they are being forced out. If talks break down, do you want an unhappy employee remaining there, what effect could this have on the rest of the workforce? Remember as well that this conversation is only confidential in a future Unfair Dismissal claim, if an employee claims you have discriminated against them during the protected conversation details can be disclosed to the Tribunal. The conversation can even be disclosed if a Tribunal considers you placed undue pressure on the employee to accept or behaved in any other improper way.
There are certainly benefits to these conversations.
If handled correctly and carefully they can be a very useful means of workforce management. In initiating such a conversation, the employer must carefully consider their offer, the words they use and the way they handle the situation to avoid any further complications.
For more information about these or if you want assistance with handling protected conversations, give Howells a call on 0114 249 6666
Tom Bernard, Employment Solicitor
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