Pre-termination negotiations introduced

From 29 July 2013 some ‘pre-termination negotiations’ or ‘protected conversations’ can take place and not be relied on by the employee as part of certain future claims even if there is no current dispute or the employee is unaware there is a problem.

This will enable you as an employer to approach an employee at any time and have a discussion about ‘moving on’.  It is hoped this will give you more of an opportunity to explore quick exits for employees, most likely supported by a settlement agreement (the new name for compromise agreement).

The without prejudice rule is not replaced.It is possible that a negotiation may be protected by both the new law and the without prejudice rule.

Pre-termination negotiations or protected conversations cannot be referred to in unfair dismissal cases only. An employee could still refer to the negotiations or conversations as part of a claim for discrimination, breach of contract or wrongful dismissal. The protection is therefore very limited and you should only start a pre-termination negotiation or protected conversation with caution.

There are also a number of exceptions where the protection will not apply.

There is no protection in claims involving automatic unfair dismissal. For example, if an employee alleges they have been unfairly dismissed because of whistleblowing, union membership or because they asserted a statutory right any discussion you have had will not be protected and can be referred to in support of the employee’s claim. Of course, the discussion may still be protected if it was without prejudice.

The protection will not apply if there has been improper behavior. This is likely to include a situation where you have discriminated, harassed or bullied the employee during the discussions or afterwards. Improper behavior will also include putting undue pressure on the employee, which could be not giving the employee sufficient time to consider your offer. We expect that this is an area where case law will be rife.  Watch out for future editions of hrlegalnews.

We can guide you through the process of terminating an employee’s employment. We can advise you on whether a discussion with an employee is likely to be without prejudice or protected by the changes coming in. We can also help you draft a settlement agreement to protect your interests in the best possible way.