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Appeal guidance on protected conversations: what can be said to a departing employee and what is admissible before the Tribunal?

View profile for Louise Taft
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Almost 3 years following the enactment of legislation permitting “Protected Conversations”, we have what is thought to be the first decision of the Employment Appeal Tribunal on the subject. Indeed, it has been so long without commentary on the point, one might be forgiven for forgetting that discussions regarding the termination of employment should not be referred to in any claim for constructive or unfair dismissal (unless a claim of automatic unfair dismissal).

Protected Conversations formed part of a raft of employment law reform introduced in July 2013. They were said to allow “honest discussions” about proposals to terminate the employment relationship in circumstances not covered by without prejudice privilege (i.e. where there was not already an existing dispute). The problem with Protected Conversations is their limitation: they are admissible in claims for automatic unfair dismissal and discrimination and they are admissible when there has been improper behaviour. In my view, it is these limitations that have restricted reference to the legislation at the Employment Tribunal and therefore appellate case law on the subject.

The Appeal Tribunal have confirmed that, unlike in without prejudice privilege, the fact of such discussions should not be placed before the Tribunal, not just the content of them. It has also confirmed that internal discussions of the employer are caught, not simply discussions between employer and employee. Finally, it has confirmed that this form of “privilege” cannot be waived by the parties. So it mattered not that this employer had not objected to reference to the discussions in its written defence to the Claimant’s claim: it could still rely on the protection. This widening of the scope of protection from the “ordinary” without prejudice rule might persuade more employers to rely on Protected Conversations.

This case does also, however, show the limits of the rule. It has been remitted back to the Employment Tribunal to consider whether the discussions should be admitted in any event because the Claimant alleges improper behaviour. The Appeal Tribunal also confirmed that the discussions can be heard to determine her claim for Sex Discrimination. The employer may have won the academic point but its effect may be significantly limited.

My advice remains what it was when Protected Conversations were initially enacted: do not say or do anything that you would be embarrassed to discuss before a Tribunal Judge. Honest conversations with employees should be welcomed, and it may be possible to exclude evidence of them in a claim for unfair dismissal, but the exceptions to the rule are wide. Any attempt to claim automatic unfair dismissal or discrimination renders the protection irrelevant. This could lead to labelling of claims that would otherwise be limited to “ordinary” unfair dismissal in order to bring the conversations before the Tribunal. Improper behaviour may also be asserted so as to bring discussions before the Tribunal. In other words, attempting to exclude a conversation might over-complicate the defence of a claim, leading to delay and greater cost.

If you are unsure as to how to manage the end of an employment relationship, contact me for a quick chat about how I can help you.

Louise Taft

T: 020 7935 3522
E: lt@freemanssolicitors.net

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