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Government provides details about "protected conversations" between employers and employees

29th June 2012

Among the recent proposals for changes in employment law is the introduction of legal protection being given to employers that want to have an opportunity to discuss termination of employment with an employee woithout that discussion being disclosed in any subsequent hearing at an Employment Tribunal.

Currently it is possible to have a "without prejudice" conversation only at a point when a dispute has arisen. The problem that employers see with this is that it does not allow them to have a conversation with an employee where they propose to tell the employee that they wish to terminate their employment, and perhaps make some offer of compensation, at a stage when the employee is otherwise unaware that there is any dispute or problem with their employment.

The Government therefore has proposed that they should be allowed in certain circumstances to be able to have such a conversation with their employee without fear of that conversation being used against them in an Employment Tribunal.

In the latest development of this theme the Government has drafted a proposed amendment to the current legislation which would allow a "protected conversation" between employer and employee. The proposal however is limited in its practical appplication, as it will only prevent the admissibility of the conversation in the hearing of an unfair dismissal claim. This means that the protection will not cover conversations about any alleged unlawful discrimination, or breach of contract claims. A complication for employers will be how the proposals apply to the situation where an employee raises claims of both unfair dismissal AND discrimination or breach of contract. Similarly not all types of unfair dismissal claim would be covered by a "protected conversation", as those automatically unfair dismissals are not apparently covered by the proposal. An example of this would be an unfair dismissal arising from whistleblowing, such as allegations relating to health and safety. It is also unclear how the proposal would affect claims of "constructive dismissal", where the employee alleges that the employer has acted in breach of contract which in turn has entitled the employee to leave and claim a constructive dismissal.

It would seem that there may be further work to be done in Parliament before the extent and remit of this proposal is clarified, even before it reaches the courts to be interpreted.


At Hallett Employment Law Services Ltd we can help you deal with issues raised in this article. If you need any advice or assistance on the matters raised do not hesitate to contact us.      

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