Category Archives: Organisation

Protected Conversations Must Remain Secret

SUMMARY: Learn more about protected conversations with your employeesPrivate conversations

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:

  1. 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 –
  2. 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.

Contact Details

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.

Top Tips for Effective Performance Management

efficacy_levelSUMMARY: Getting the best from its greatest asset, its staff, should be every organisation’s goal. This can be achieved using a combination of strategies including recruitment and retention; training and staff development, as well as performance management strategies.

We have produced a list of some simple dos and don’ts for dealing with the performance management of staff:


  • DO take a proactive approach and seek to resolve performance management issues at an early stage. One way for achieving this is conducting regular meetings with staff at which performance management issues (as well as other general matters) can be raised informally.
  • DO investigate why the employee’s performance is falling below the standard expected; for example, consider whether the employee is dealing with an increased workload or dealing with non-work related issues which are impacting on their performance. Always consider the employee’s explanation for performance issues and identify if other policies are triggered such as health management, stress management or bullying and harassment policies.
  • DO make sure an employee is aware of the standard expected of them and give them a reasonable opportunity to meet those standards. Any goals set to underpin performance expectations should be SMART and supported by the provision of training and/or managerial support where appropriate.
  • DO use probationary periods effectively and consider extending these periods if performance is an issue. Ensure that review meetings are scheduled at appropriate intervals throughout probationary periods.
  • DO review your procedures and processes for managing poor performance on a regular basis to ensure they are in accordance with current case law and legislation.


  • DON’T use the annual staff appraisal to address performance issues. Also ensure that, where performance is discussed as part of the staff member’s appraisal, it gives an accurate picture of their performance.
  • DON’T forget to keep records of all discussions and correspondence relating to an employee’s performance – this includes both the informal and formal elements of the performance management process.
  • DON’T confuse performance management policies and/or processes with other policies and/or processes such as sickness absence or disciplinary policies and processes. Check whether your organisation has a separate policy for performance management or take advice on which policy is adopted in these situations.
  • DON’T forget that the ACAS Code of Practice on Disciplinary and Grievance Procedures applies to dismissals for poor performance. Failures to comply with the Code can result in uplifts to compensation being made where there is a failure to follow a fair procedure and the employee successfully claims unfair dismissal.
  • Finally, DON’T be afraid of tackling poor performance but DO ensure your strategy for doing so is legally compliant.

Contact Details

If you would like more information on performance management, please contact:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Apprentices – Four Reasons and a Risk

160607 Apprenticeship Training CareerSUMMARY: Four reasons to engage an apprentice and how to overcome the main risk

The government has been encouraging employers to engage apprentices and many employers are now seeing the benefits of them.

Four key benefits

1. National Insurance Contributions (“NICs”)

Since 6 April 2016, employers do not have to pay class 1 NICs for apprentices who are earning less than £827 a week (£43,000 a year) and are:

  1. under age 25; and
  2. following an approved UK government statutory apprenticeship framework.

Specific evidence is needed to show that these two requirements are satisfied. For example, an appropriate agreement.

 2. Apprentice rate minimum wage

If the apprentice is in the first year of their apprenticeship or is under the age of 19, employers can pay the apprenticeship rate, which is currently £3.30 per hour.

3. Gain skills in areas your organisation needs to grow

Organisations will be constantly considering and implementing new ways to grow.  Apprentices can be a cost effective way of supporting the larger strategic aim.

4. Funding

There could be funding available from the Skills Funding Agency to your business to support apprenticeship programmes.  Further information can be found at


The intention is for the apprenticeship relationship to be a positive and beneficial one for the organisation and the individual. However, not all working relationships will be harmonious.  If things do not work out, employers need to be able to address problems and ultimately dismiss individuals both fairly and lawfully if problems subsist; this is often where the risk lies.  Why?  Apprentices can have enhanced rights on dismissal, which limits the ability to terminate the agreement without potentially a significant financial liability.

Having the right agreement in place lowers the risk by ensuring an apprentice can be dismissed in the same way as an employee.

More Information

For more information on apprenticeships and how you can make them work for you, please visit:

Alternatively, if you would like more information on other contract essentials, please visit:

Contact Details

If you are considering recruiting an apprentice and want to benefit from the above advantages, without worrying about the risk, please contact us:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Working Out Working Time

working-timeSUMMARY: Are your working practices in line with the Working Time Regulations?

Any organisation will want to manage its hours to meet the needs of the business.  In doing so it will, however, always be important to ensure that the statutory requirements under the Working Time Regulations are satisfied.  Our quick guide below will help you to check if you are doing what you need to do.  It is important to remember these rights apply to both employees and workers.


Workers are entitled to take 5.6 weeks (28 days) of paid holiday each year – this entitlement is calculated on a pro-rata basis for those working part-time.

For a more details on holiday entitlements please click here for our fact sheet on holiday entitlements.

Rest periods

Workers are usually allowed the following rest periods:

  • 11 hours’ uninterrupted rest per day;
  • 24 hours’ uninterrupted rest per week (or 48 hours’ uninterrupted rest per fortnight); and
  • an unpaid rest break of 20 minutes when working more than 6 hours per day.

In some cases it may be possible to require a worker to work during a rest period; compensatory rest will usually have to be given.

Average working time

Average working time should not exceed 48 hours per week, unless the worker has opted out.

Night workers

  • Night workers’ normal hours of work should not exceed 8 hours per day on average.
  • No night worker doing work involving special hazards or heavy physical or mental strain should work for more than 8 hours in any day.
  • All night workers should have the opportunity of a free health assessment when starting night work and at regular intervals when working nights.
  • If a doctor advises that the night work is causing health problems, transfer a night worker to day work where possible.

Young workers

Young workers (those under 18 but over compulsory school age) have additional protection.  They:

  • are entitled to a 30 minute unpaid rest break if they have worked for more than 4 hours 30 minutes,
  • must not work more than 8 hours per day,
  • must not work more than 40 hours per week; and
  • must not generally undertake night work.


A worker can agree to work more than 48 hours each week by signing an opt-out agreement; young workers cannot opt out.

Other limits, for example relating to night working, rest breaks and rest periods can be modified by agreement.  Usually, this must be done with a collective agreement or workforce agreement.  If such modifications are required, we would recommend you take legal advice.  There are some strict rules which must be complied with to ensure the workers’ rights are validly modified.


Record keeping is important as it will show workers’ rights are being complied with.  Equally, it is a strong indicator of good health and safety practices.

Special rules

Note that there are special rules in relation to certain groups of workers, such as the armed forces, which we have not covered here.

Contact Details

If you would like more information on working time obligations, including how to modify them – please contact:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Engaging With Your Workforce

engaging-with-your-workforceWith unemployment still falling what is your organisation’s retention plan? Staff turnover can prove costly and also cause difficulties in attracting new recruits. To find out how to engage with your workforce more effectively, please click here.

The ONS also reports that bonuses are contributing to reported salary increases – do you have the right bonus scheme in place?  To find out more, please click here.


Staff Handbook: Handy or a Hindrance?

staff-handbookSUMMARY: Employer’s bid to change its staff handbook is rejected by the Court of Appeal… Read on to stop this happening in your organisation.

Staff Handbooks are a great way of telling staff what you expect from them at work and how they will be treated in return. A constantly evolving handbook with inherent flexibility to adapt to organisational change can be a very effective people management tool.

To ensure there are no limitations on an employer’s ability to make changes, the handbook should be a guidance document, which does not form part of the contract of employment.

In a recent dispute about a change to an absence management process the Court of Appeal confirmed that the employer could not unilaterally implement a change to that process even though it was contained in the handbook. The relevant process was contained in the part of the handbook which was stated to have contractual effect and therefore the employees’ consent was necessary.

The following are some simple do’s and don’ts to avoid this problem happening:

DO check whether your existing staff handbook is contractual or non-contractual.  Sometimes a handbook will state that part of it is contractual and part of it is non-contractual.  It is easier to amend a handbook (or parts of it) that are non-contractual than those that are contractual. If the contractual status of the handbook is unclear, consider seeking legal advice.

DON’T amend your handbook if it is (or parts of it are) contractual without consulting with staff to reach agreement. There may be an obligation to enter into a more formal consultation process if more than 20 employees are affected and/or there is a recognised trade union. If you are unsure about your consultation obligations, consider seeking legal advice.

DO consider putting in place a completely non-contractual handbook if you do not already have one.  This would avoid the worry of having to consult with staff every time a change is made; notification to staff would suffice.  Staff would still be bound by the policies in a non-contractual handbook because they have a duty to obey lawful orders.

DON’T forget to review contracts of employment at the same time as a contractual staff handbook, especially if you are looking to remove the contractual parts of the handbook; if some elements need to remain contractual relocate them to the contract.

Get your staff handbook right and it will definitely be handy rather than a hindrance.


Department for Transport v Sparks and others [2016] EWCA Civ 360

Contact Details

For more details about amending handbooks or contracts of employment or consulting with your workforce please contact:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.