21 February 2018
EMPLOYMENT – Should I have a “protected conversation” with my employer?
The short answer is – Yes! See what is on offer by your Employer – then take advice on that offer from us - you have nothing lose.
The law ….. Discussions that take place when an issue or dispute has arisen between employer and employee are often undertaken on a “without prejudice” basis. This means that anything said during the course of any “without prejudice” discussions or meeting etc cannot be used in Court or Employment Tribunal as evidence.
This “without prejudice” rule does not apply where there is no existing dispute between the parties. Accordingly where there is no existing dispute the Employer can still have a protected discussion with the Employee under section 111A of the ERA 1996 with a view to ending their employment. Section 111A allows an Employer to have a confidential discussion with an Employee with a view to discussing an offer of termination of employment or settlement agreement without the risk that the Employee can rely on it in any claim for unfair dismissal etc.
There are some exceptions to s111A such as whislteblowing, union membership issues, discrimination claims, harassment or victimisation or other claims under the Equality Act 2010, or asserting a statutory right are not covered by the confidentiality provisions of s111A. If you are unsure, please speak to us.
The confidentiality of a protected conversation under section 111A is also subject to there being no improper behaviour on behalf of the Employer. If you are unsure, if your Employer's conduct amounts to improper behaviour - please speak to us on 0161 830 7777.
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