Managing employee underperformance or difficult relationships between colleagues can be a costly and time-consuming process, often involving lengthy performance improvement plans, disciplinaries and often grievances before a decision is ultimately made to dismiss an employee. Even then, you might face an appeal process or even litigation.
What legislation changed in 2013 around protective conversations?
New Legislation was introduced in 2013 to allow employers to have conversations with employees prior to termination of their employment with a view to resolving the dispute which is confidential and protected from reference in any subsequent litigation. This often results in the parties agreeing to the termination of the employee’s employment, without the need for months of investigations and investment.
Limitations to the scope of protection
Caution is advised, however, as there are limitations to the scope of the protection. Although it provides a platform for a fast track dismissal, it could be counterproductive if approached in the wrong way. The employee will almost certainly be defensive and may adopt unreasonable demands, damaging the relationship further if a resolution isn’t reached. If there are allegations of improper behaviour during the discussions or where there is a complaint which would automatically be considered to be unfair if litigated, the protection disappears.
Five years on from this change of law, I have seen the operation of the pre-termination negotiations in many litigated cases, both where parties have tried to rely upon the legitimate discussions to support their case and where they have tried to suppress discussions which fall outside of the legislative protection. It can be difficult to determine on which side of the line the communication falls.
Use caution and be clear
The message to my commercial clients is always to adopt a careful approach, thinking practically as well as cautiously. Above all, make it clear that any communications are intended to be covered as confidential pre-termination negotiations, that engagement is optional for both parties, explain the potential next steps if a resolution is not reached and where appropriate, ensure that you tie things up neatly with a valid settlement agreement.