With more and more people leaving the NHS under settlement agreements, managers need to know what can and can’t be said. Iain Birrell explains the rules about so-called ‘protected conversations’.

Being able to talk candidly about sensitive issues, such as dismissal, is a basic necessity for members of staff and employers. So it’s important for managers in the NHS to understand the rights and responsibilities of both employer and employee in what are often called ‘protected conversations’.

In 2013, new rules were bought in which allow employers to talk to their staff off the record about whether they might be interested in leaving under a settlement agreement (see below). The new rules mean that, in most cases, employers are protected from having what they say during these negotiations raised in unfair dismissal claims at employment tribunals.

The 2013 rules do not, however, give employers complete freedom to say or do whatever they like during these conversations. There are number of important points to consider when considering the option of a protected conversation – either as a manager or as an employee.

How has the law changed?

Before protected conversations were introduced, employers could speak to employees on what was known as a ‘without prejudice’ basis. This meant that anything discussed could not be used as evidence in any subsequent employment tribunal proceedings.

However, the conversation would only gain that confidential protection if it was held as part of a negotiation process that made genuine attempts to settle an existing dispute. If there was no existing dispute, then the conversation could not be held ‘without prejudice’, and the worker would be free to raise the content of the conversation at an employment tribunal in the future.

With ‘protected conversations’ there is no need for there to be an existing dispute – an employer can talk ‘off the record’ to workers almost whenever they like. Employers can open pre-termination discussions safe in the knowledge that the details of that conversation cannot be used by the worker in most unfair dismissal claims before an employment tribunal. 

Protection for employees

Under the legislation, workers still have some rights in respect of protected conversations. Ensuring all parties know their rights and responsibilities will help you to bring negotiations over a settlement agreement to a successful outcome for everyone involved.

Conversations are only ‘protected’ in the context of ‘ordinary’ unfair dismissal claims. In cases involving discrimination or automatic unfair dismissal, the protection does not apply and the discussions can be used as evidence at an employment tribunal.

Only conversations relating to ending the employment relationship are protected – so any prior conversations about performance or disciplinary issues, for example, could still be raised at a tribunal.

Finally, if there is any improper behaviour by the employer during the discussions, the protection is broken. Improper behaviour includes putting unfair pressure on workers to leave or accept a settlement agreement, and any form of harassment, discrimination and victimisation.

Employers attempting to make a settlement agreement should follow the recommended procedures to make sure they enjoy the benefit of protected conversations. Acas, the government’s dispute resolution service, offers a helpful online guide on settlement agreements which sets out detailed examples of what constitutes improper behaviour by employers.

Key points about settlement agreements

• Settlement agreements are legally binding contracts that waive an individual’s rights to make a claim covered by the agreement to an employment tribunal or court
• The agreement must be in writing
• They usually include some form of payment to the employee and may often include a reference
• They are voluntary
• They can be offered at any stage of an employment relationship

Iain Birrell is the national case management coordinator for Thompsons Solicitors’ Trade Union Law Group. Legal Eye does not offer legal advice on individual cases. MiP members in need of personal advice should immediately contact their MiP national officer.