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…
Click on the link below to read the rest of the DLA Piper briefing.
Sign in or Register to continue reading this article
It's quick, easy and free!
It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.Register now
Why register to The Lawyer
In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.
Identify the major players and business opportunities within a particular region through our series of free, special reports.
Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.
More relevant to you
To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.
News from DLA Piper
News from The Lawyer
Briefings from DLA Piper
The Australian Taxation Office released a draft ruling on the Goods and Services Tax treatment of bitcoin transactions on 20 August 2014.
DLA Piper’s ‘Life sciences: patent extension strategies and antitrust global update’ video covers global antitrust and competition issues including product hopping and reverse payment patents.
Analysis from The Lawyer
Regulators are ramping up the pressure in the aftermath of recession, leaving firms to compete for compliance and restructuring work
Shearman & Sterling is making its presence felt in the City, squaring up to magic circle firms and looking to muscle in on key relationships. Private equity house Bridgepoint is one outfit that has had its head turned by the US firm.