SUMMARY: Learn more about protected conversations with your employees
In 2013 there was a welcome change, which now enables employers to have what are called protected conversations with their employees about ending the employment relationship. Previously, employers had been nervous about having such conversations, due to the risk that an employee would later rely on what had been said as evidence in an unfair dismissal claim.
Since then employers in some circumstances have been able to speak more freely with those employees who are not considered to have a future with the organisation, usually because their performance or conduct is substandard. Once the discussions have started, there are likely to be two outcomes:
- The employee agrees to leave and their departure is managed with a settlement agreement to remove the risk of any tribunal claim. To learn more about settlement agreements, please click on the following link – http://www.fgsolicitors.co.uk/news/settlement-agreements-a-perfect-ending/
- The employee declines the offer of an agreed departure. If that is the case, the employer can then go back to its internal procedures to manage the situation. If the employee is subsequently dismissed, the following protection arises so that there can be no reference to either:
- the content of any settlement offer or the pre-termination discussions; and/or
- the fact an offer has been made or pre-termination discussions have arisen. This level of protection has recently been confirmed by the Employment Appeal Tribunal, which explained that an employee should not be able to refer to the fact discussions have taken place pre-dismissal in an unfair dismissal claim.
Clarification was also provided that the protection extends to any internal discussions between different managers and human resources.
Protected conversations are potentially a safe way of managing straightforward people management issues. Employers however wanting to have such discussions should be aware of the following:
- The protection is lost if either party engages in improper behaviour including for example, bullying, harassment, discrimination, victimisation, physical assault, or undue pressure.
Telling an employee that the capability or conduct procedure will be invoked if terms cannot be agreed would not be improper behaviour. Stating that the individual would be dismissed if they do not agree to leave would be improper behaviour.
- The employee should be given a reasonable period of time to consider any offer and take advice; ten days is usually considered to be reasonable in most cases. Although there is no statutory right to be accompanied at any meeting where a protected conversation takes place, as a matter of good practice an employee should be entitled to be accompanied by a work colleague or a trade union representative.
- The protection will only apply in respect of “ordinary” unfair dismissal claims. Where an employee brings proceedings for automatically unfair dismissal (for example, whistleblowing or health and safety), or any other claim such as discrimination or breach of contract, the protection afforded to pre-termination negotiations will not apply. This does therefore create inherent uncertainty in the effect of initiating a pre-termination negotiation until an employee commences proceedings, or decides not to do so as settlement terms have been agreed.
If you consider that you may want to have a protected conversation with an employee, it is preferable to take legal advice before doing so. This will ensure that you are confident that a protected conversation is the right way forward and if not, what other ways there are to managing the situation.
To explore how protected conversations and settlement agreements can provide solutions to workplace problems – please contact:
+44 (0) 808 172 93 22
This update is for general guidance only and does not constitute definitive advice.
SUMMARY: The EAT has upheld a decision that 3 separate emails about snowy conditions could amount to a “qualifying disclosure” about health and safety for the purpose of whistleblowing protection.
An employee who blows the whistle has protection against being dismissed or subjected to a detriment because they have taken this action. Whistleblowing means making a qualifying disclosure and there are various reasons for which a disclosure can amount to a qualifying disclosure. One of these reasons is if the disclosure is about health and safety.
To amount to a qualifying health and safety disclosure and so provide the employee making the disclosure with protection, the disclosure should show that the health or safety of an individual has been, is being or is likely to be endangered.
If an employee simply expresses an opinion or makes an allegation, this cannot amount to a qualifying disclosure.
Facts of this case
In this case, an employee sent 3 separate emails to 2 separate recipients relating to his concerns about his team driving to appointments in the snow in the winter of 2010. He first sent 2 emails to the company’s health and safety manager and subsequently emailed a member of the company’s Human Resources department asking about payment if his team were unable to make appointments in the snow.
The Employment Appeal Tribunal’s (EAT’s) decision
The EAT upheld the employment tribunal’s decision that the email correspondence taken as a whole was a qualifying disclosure. It was clear in the final email to Human Resources that earlier correspondence had been sent about the dangers of driving in the snow.
Although taken on their own, the emails did not amount to qualifying disclosures, taken together they did amount to a qualifying health and safety disclosure.
What does this mean for employers?
Employers should be aware of the following:
- Email correspondence can easily be referred to in a tribunal so emails should not be dismissed or sent lightly;
- Emails which refer to dangerous working conditions, including dangerous driving conditions for sales staff, should be taken seriously;
- Emails which seem short with insufficient detail on their own could be protected by whistleblowing legislation when taken with other emails;
- If an employee refers to previous correspondence to another manager, the person receiving the later email should check exactly what the previous correspondence says and consider the emails together; and
- A person should not be subjected to any detriment (i.e. be dismissed, not offered an opportunity for promotion or a pay rise etc.) because they have raised concerns about health and safety.
We would therefore always advise taking legal advice if an employer is considering dismissing an employee if there is a history of the employee raising health and safety concerns.
Hazel Robbins, Solicitor
Case: Norbrook Laboratories (GB) Ltd v Shaw
For more details about this case or whistleblowing please contact:
+44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.
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“Flight Plan” is Floyd Graham & Co Solicitors’ no cost start-up pack of Employment and HR documentation for new businesses, which are less than 6 months’ old, and seeking to employ staff. This initiative arises out of Floyd Graham & Co Solicitors’ desire to support start up businesses in the current climate.
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