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Protected conversations – how protected is protected?

The Government announced last week the wording that they are proposing to add to the Employment Rights Act 1996 (at section 111A) so that employers can discuss terminating an employee’s employment on a mutually agreed basis without this forming part of an unfair dismissal claim. The main provision on this will say:

(1) In determining any matter arising on a complaint under section 111 [an unfair dismissal claim], an employment tribunal may not take account of any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.

At the moment, it is not clear whether:

  • this new provision is intended to cover employees who resign after being told “we don’t see a future for you here, you had better take this settlement agreement“ so that they will not be able to claim constructive unfair dismissal relying on such a statement; and/or
  • what this will mean if an employee brings both a discrimination and unfair dismissal claim as a result, for example, of being told “you are too old to continue working here, why not accept this settlement agreement?”. Will the claims still be heard together if the Tribunal cannot take this statement into account when determining the fairness of the dismissal? Will such a dismissal be found to be discriminatory but not unfair?

There are caveats set out as to when the exception will not apply. And this includes if the statement made is “improper” (which the example statements I have set out may be).

If the employee is going to be able to rely on “improper” statements, still claim discrimination and automatically unfair dismissal, whether or not “protected conversations” are permitted employers will still have to be very careful about what they say.

So it is easy to see why some are questioning whether this offers much of a change at all.

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