Protected Conversations – All or Nothing

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Protected Conversations – All or Nothing

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The subject of ‘Protected Conversations’ has recently been raised in the Employment Appeal Tribunal.

What are they? They are ‘off the record’ discussions aimed at mutually agreeing termination of employment. They cannot then be disclosed in an ordinary unfair dismissal claim.

Protected conversations are different from ‘without prejudice’ discussions in two main ways. Firstly, without prejudice discussions are only ‘off the record’ if they are part of a genuine attempt to settle an existing dispute. In contrast, a protected conversation can be held at any point during employment, whether before or after a dispute arises. The protected conversations rule therefore often enables ‘off the record’ conversations to take place at an earlier stage. Secondly, without prejudice applies to all types of claims but protected conversations are only ‘off the record’ for any ordinary unfair dismissal. If there are risks of wider claims then it is wiser to use the without prejudice rule – you can even use both at the same time.

In the recent case of Graham v Agilitas IT Solutions Limited, the employer tried to engage in a protected conversation with Mr Graham with a view to ending his employment due to poor performance. However, the meetings, which the Court agreed were found to be both genuine protected conversations and on a without prejudice basis, didn’t go to plan. Mr Graham felt he was being bullied and harassed into resignation, while his employer considered that Mr Graham’s actions during these meetings justified disciplinary sanction – Mr Graham was therefore dismissed for misconduct rather than poor performance.

Mr Graham sought to rely on the parts of the protected conversations in support of his allegations. His employer sought to rely only on the parts supporting his misconduct. The appeal Tribunal considered the extent to which the employer could suppress the allegations of bullying by hiding behind the protected conversation rules whilst also using Mr Graham’s conduct to justify the dismissal.

The ruling was clear; the protected conversations rule could not be used by the employer as both a shield and a sword simultaneously. Either the protection was genuine, in which case none of the contents of the discussion could be used as evidence, or it was not in which case the entire meeting could be considered.

Protected Conversations have become part and parcel of resolving issues with employees. This particular case has been sent back to the Employment Tribunal for them to reconsider. It is a timely reminder of the importance of dealing with such discussions properly and professionally, particularly as the prospect of an employee challenging the circumstances behind them has increased with the recent abolition of Tribunal fees.

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