Under s.111A of the Employment Rights Act 1996, employers can have ‘off the record’ conversations with an employee prior to the termination of the employee’s employment.
‘Off the record’ in this context essentially means that any content or evidence of that conversation will be inadmissible in any Employment Tribunal proceedings.
Protected conversations are different from ‘Without Prejudice’ conversations which can only be used once there is an existing dispute.
Employers should be careful to mark any pre-termination negotiation as a ‘Protected Conversation s.111A ERA 1996 and/or Without Prejudice subject to contract’ and be careful not to discuss or do anything which may negate its protected status, this includes any ‘improper’ behaviour e.g. bullying and harassment. Furthermore, any discussion which is not a genuine attempt to negotiate will not be protected.
Employers must remember that Protected Conversations under S.111A ERA 1996 are limited to unfair dismissal cases. For instance, if a claim was brought for both unfair dismissal and discrimination then any negotiation on the unfair dismissal will be inadmissible but admissible in relation to the discrimination.
The protection afforded by s.111A also becomes ambiguous where there remains a dispute over the date of termination- see Basra v BJSS Ltd.
Talk to our Employment Solicitors today about the implications of Protected Conversations.
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