Category Archives: Protection

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.

Misconduct & Punishment in Employment

Punishment at workSummary: Disagreement between employer and employee is as old as the very concept of Master and Servant itself. As a general rule, where disagreement ends with an employer forming the view that an ending of the relationship is the outcome it desires, there are some mandatory steps that will need to be addressed.

An employer seeking to dismiss an employee will generally have to consider 2 key areas of law:

  1. the first answers the question, what if anything is owed to the employee as a result of the ending of the employment? – the contractual question;
  2. the second, is the dismissal fair in all the circumstances? – the protection afforded to the employee by Parliament; the statutory question.

The first question is arguably the one to answer. Consider the case of an employer wishing to terminate the employment of an employee for misconduct who has a contract entitling them to 6 months’ notice. Except for where the misconduct is of such an extreme nature that it amounts to gross misconduct, ending the employment without payment is likely to give rise to a successful breach of contract claim.

In a recent case, the High Court decided that an employee who sent a pornographic e-mail from a work account had committed an act which entitled his employer to dismiss him without paying him the 12 months’ notice to which he was entitled. This was in spite of the fact that the sending of the e-mail was discovered some 5 years after it had been sent and only as part of a fishing exercise conducted by the employer, specifically to find a reason to dismiss.

It is extremely important that an employer intending to dismiss in these circumstances does not, after discovery of the conduct, behave in a way that would lead to a view that it had waived its right to dismiss in these circumstances.

By contrast, whether or not the dismissal was fair, in all the circumstances, would largely depend on the procedure leading up to the decision to dismiss. In short, did the employer have a reasonable belief in the guilt of the employee based on the employer having undertaken a reasonable investigation? Finally, whether the decision to dismiss in those circumstances, as opposed to applying some other sanction, was reasonable.

Tackling the risk of a successful unfair dismissal claim is a juggling act requiring an employer to engage in a fair procedure free from bias, permitting the employee an opportunity to properly understand the allegations, to address them and to be accompanied if requested.

Having managed all of that, dismissing the employee as a result of the allegations must, on an objective view, be action that a reasonable employer would take. Applying this thinking to the case mentioned above, while the age of the offence might not matter, particularly if the employer had no knowledge of it, the decision to go on a fishing expedition to find misconduct that would allow an employer to dismiss for gross misconduct and in so doing avoid the obligation to pay notice, may very well be considered unfair. This is so even if in so doing the employer would not be in breach of contract.

Other considerations:

  • Ensure that if contemplating dismissing for gross misconduct, and your policies define types of conduct that you consider fall within that category, the current offence does not fall outside it. In a recently decided case where a tribunal found the dismissal of an employee to be unfair, one of the factors that influenced the finding that the dismissal was unfair was the fact that the employer’s policy stated that the offence which the employee was facing would be dealt with by a maximum sanction of a written warning.
  • Ensure that you follow your own laid down procedures.
  • Ensure your investigation is thorough, including follow up investigations.
  • Ensure the process is well documented including witness evidence and statements.
  • Wherever possible, ensure that each level of the process is chaired by someone different.
  • Permit an appeal.

Above all, obtain proper advice and support.

Contact Details

For more details please contact:

+44 (0) 808 172 93 22

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

Immigration – what would you do if the Home Office comes knocking?

FGS - Immigration ChecklistSUMMARY: The Immigration Minister has recently announced that businesses that employ illegal workers will be hit with the “full force of government machinery”. Therefore, employers would be wise to seek protection by making use of defences which are potentially available. In this update we give 10 top tips to the employer who wants to ensure it has a defence.

Currently, an employer who is found to be illegally employing foreign nationals faces both civil and criminal penalties. The civil penalty for unknowingly employing a foreign national is up to £20,000 for each illegal worker. In the event the employer knowingly employs a migrant who does not have the right to work, that employer will be committing a criminal offence and the criminal penalty is a potential prison sentence and an unlimited fine.

Whilst there is no defence to the criminal offence, there is a possible defence to the civil offence. This defence, which is a statutory defence, relies on the employer showing that it has carried out the correct document checks – the 10 top tips relate to a statutory defence.

The 10 top tips:

1. Obtain proof of a prospective employee’s right to live and work in the UK before they commence employment.

If the checks are undertaken after the employee has commenced employment, the employer will not have the defence. All checks should be carried out consistently on all prospective employees (regardless of whether that employee is or appears to have the legal right to live and work in the UK) at the same stage, to avoid any discrimination argument.

2. Ensure that you are checking the correct documents in accordance with current Home Office guidance.

You can find an Employer’s Guide to Right to Work Checks on which sets out the documents which must be checked. This guide is frequently updated (most recently, 12 May 2015) and so needs checking for updates on a regular basis.

3. Take particular care in relation to checking students’ documents.

Where a prospective employee is a student with permission to study they can only work for limited hours during term time. Make sure you obtain the appropriate evidence for this category of worker and you implement the appropriate systems to ensure they only work in accordance with their permission.

4. Check documents in the presence of the prospective employee.

This is because you are required to check that the documents:

  • are genuine;
  • are presented by and belong to the holder who is the prospective employee; and
  • show that the prospective employee has the right to do the type of work you are offering.

Whilst the prospective employee can be present by live video link, you must have the original documents in front of you – you cannot check photocopies, faxes or images via video link.

5. Obtain supporting documents if there has been a change of name.

If names differ in the documents, you must identify the reason(s) for this difference. For example, the individual may have changed their name due to marriage or divorce, in which case you would need to obtain the original marriage certificate and/or the divorce decree absolute. You may need to obtain a deed poll document.

6. Make a copy of the documents you have checked.

You should make and retain a clear copy of the documents you have checked, and make a record of the date of the check.

For passports, copy pages with the document expiry date, the holder’s nationality, date of birth, signature, leave expiry date, biometric details, photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question.

For all other documents, you must copy the entire document.

Copied documents must be securely retained for not less than two years after the employment has come to an end.

7. Are follow-up checks required?

If the individual has a time limited permission to be in the UK and to do the work in question, diarise follow-up checks for the appropriate time – we generally recommend carrying out a check in good time before a permission expires so that there is time for the business to contingency plan if necessary.

Be aware that there are a number of positive obligations on employers with regard to follow-up checks for certain permissions.

8. Consider if you should use the Employer Checking Service.

This service (which can be accessed at should be used if an employee:

  • cannot show you their documents. This could be because they have an outstanding appeal or application with the Home Office;
  • has an Application Registration Card; or
  • has a Certificate of Application.

9. Always obtain the individual’s consent before using the Employer Checking Service.

The employee must first give their consent before you use the Employer Checking Service. It is acceptable for consent to be given either verbally or in writing, however, we advise that it is obtained in writing in case of future challenge.

10. Everything changes…

…regularly! In the past few years the Immigration Rules have changed – the changes have impacted on the documents to be checked as well as the checking process itself. It is likely that there will be further changes with this being such a politically hot topic. We therefore advise that each time you deal with an individual’s legal right to work you ensure that you are complying with the then applicable legislation requirements.

Please do be aware that these top tips are not a comprehensive guidance on the steps to be taken for those employers wishing to avail themselves of the statutory defence. We offer a full immigration service, which covers all aspects of this thorny area of the law (including sponsorship licences and visa applications) and will be happy to provide full guidance on the statutory defence as well as any other right to work/immigration queries that you have. For more information about this service, please contact:

+44 (0)808 172 93 22

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