Hello all, hope your weeks are going well!
I had a busy week last week, work wise and also socially, as it was my birthday on Wednesday, and we went to see Nick Mohammad as Mr Swallow in his show, Show Pony. It was very funny, very silly, and just what I needed. I would definitely recommend going to see him, especially if you have a silly sense of humour.
Then on Friday I went to see my beloved McFly, this is (I think) probably about the 20th time that I have been to see them, me and my friend have been pretty much every year since we were about 13 years old. Our parents have ferried us around the country to see them; my dad loves telling a story about how he once was so bored waiting for us that he had to wander around a 24 hour Tesco to keep himself from falling asleep whilst he waited for us to be done! The tour was actually McFly vs Busted; I don’t need to tell you what side I was on! It was a great night.
Anyway, onto why we are here, legal updates! This week it’s all about protected conversations.
They can be an invaluable tool for us in managing sensitive employment issues BUT they must be handled with care. The case of Gallagher v McKinnon’s Auto and Tyres Ltd offers us practical insight into how tribunals assess the fairness and conduct of such discussions which should be in the back of our minds when we hold these types of conversations.
What are Protected Conversations?
If you haven’t come across protected conversations before, under Section 111A of the Employment Rights Act 1996, a protected conversation allows an employer and employee to discuss the possibility of ending their employment on agreed terms, typically through a settlement agreement, without the conversation being admissible in any subsequent unfair dismissal claim (except for cases involving “improper behaviour”- more on this later!).
This protection is supposed to encourage open and constructive conversations, giving both sides the chance to explore an amicable resolution without the fear that such talks will later be used against them in future internal proceedings or in tribunal.
However, it is important to note that the protection is not unconditional. If the employer’s conduct during the conversation amounts to “improper behaviour”, the protection can be lost, and the discussion may then be admissible in any subsequent tribunal proceedings.
The case: Gallagher v McKinnon’s Auto and Tyres Ltd
So, what does this case tell us, and what can we take away from it?
In this case, Mr Gallagher was invited to what he believed would be a return-to-work meeting following sickness absence. During the meeting, however, his employer raised the possibility of a settlement agreement to end his employment instead.
The tribunal found that, while the meeting’s purpose had not been accurately represented, it did not go as far to then amount to improper behaviour. The employer’s approach was found to be calm and professional, and the employee was given the chance to consult his family and legal advisor before making any decisions. The way in which the meeting was handled was important.
The tribunal’s reasoning offers us helpful guidance on where the line between acceptable conduct and “improper behaviour” is drawn.
Key takeaways
- Be Transparent About the Purpose of the Meeting
Inviting someone to a meeting for one reason (in the case above it was a return-to-work meeting) and then introducing a settlement discussion instead is not ideal. This is because it can create confusion and undermine trust.
However, as the Gallagher case shows, this does not automatically amount to improper behaviour, provided the discussion is conducted appropriately. So if you are going to drop a settlement offer in, do so calmly, respectfully, and with no added pressure to accept the offer. The tone and fairness of the meeting are what matter most here.
- Avoid Threats
The tribunal accepted that telling an employee that a process would begin if a settlement was not agreed, is not the same as threatening to dismiss the employee.
Employers are entitled to explain to the employee what would happen if a settlement wasn’t reached, for example, that a formal performance or absence management process or redundancy process (whichever is being proposed) would follow so long as this is factual and not done in an intimidating manner.
- Time Limits
Setting a 48-hour deadline for accepting a verbal offer was found to be reasonable in this case, as the formal written agreement would follow only once verbal acceptance was given.
Once the written settlement agreement is provided, however, employees must be given at least 10 calendar days to consider it, this is the recommended time frame given by ACAS. Importantly, the 10-day period starts only when the written agreement is received, not when the initial verbal offer is made.
Practical guidance
If you are planning on holding a protected conversation, I would recommend that you first get in touch with us, we have the meeting plans and letters that can help you ensure that a proper process is followed and documented. But in general terms you should-
- Plan ahead: Be clear on the purpose of any meeting and who will attend (we would recommend having a second person at the meeting to be a witness if needed).
- Stay calm: Avoid pressuring the employee and ensure that they are clear that there is no pressure to accept the offer.
- Allow time: Encourage employees to seek advice and properly think through whether they want to accept the offer, make it clear that this is just one option available to them.
- Document carefully: Keep a factual note of the discussion and deadlines given to the employee.
- Follow up in writing: Confirm the settlement proposal in a clear, structured way (we have the letter for you if needed!)
The Gallagher case is a reassuring reminder for us that protected conversations remain a safe and useful route for resolving workplace issues, provided that they are managed with professionalism and fairness.
For us, the key takeaway is having a balance: handle these discussions transparently, give employees the space to think about their options, and avoid any pressure. Done properly, protected conversations can be an excellent tool to prevent disputes from escalating and support a mutual agreed and pain free exit for all parties involved.
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