Pre-termination discussions: do recent developments in protection really help employers?

By Pattie Walsh

In July 2013, in the spirit of allowing employers to engage in more open and frank conversations with their employees, the government introduced a new regime of ‘protected conversations’, preventing certain discussions from being admissible in tribunal proceedings. On the face of it, this employment law reform should have been welcome news for employers. However, in practice, the system is fraught with difficulties, opening up the question of whether it has truly added anything to the existing ‘without prejudice’ regime… something that has been reinforced by a recent case potentially extending the ability for employers to rely on the ‘without prejudice’ rule to avoid pre-termination conversations being used as evidence in a tribunal.

The new ‘protected conversation’ provisions have the effect that an employer’s pre-termination negotiations with an employee will be inadmissible as evidence in any subsequent tribunal proceedings relating to unfair dismissal. The first limitation is immediately obvious — it only applies to unfair dismissal proceedings. If an employee brings a claim for any other reason (including in relation to an automatically unfair dismissal), the protection does not apply. Protection may also be lost if either party engages in ‘improper’ behaviour — pending any cases on this issue, what constitutes ‘improper behaviour’ is currently full of uncertainty, meaning that employers will have to tread very carefully to ensure they do not inadvertently lose the protection…

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