How much protection does a protected conversation actually give you?

How much protection does a protected conversation actually give you?

A protected conversation is an ‘off the record’ discussion that can be had between employer and employee to bring about the termination of employment on agreed terms, this can be done at any time during the course of employment and can be had where no dispute currently exists between the parties. This is different to a ‘without prejudice’ discussion where there must be an existing dispute and the without prejudice conversation must be a genuine attempt to settle that dispute.

The content of the protected conversation cannot be used as evidence in a claim for ordinary unfair dismissal. However, there are limitations on the use of a protected conversation and the ACAS Code of Practice states that:

• the protected conversation will only be inadmissible for cases of unfair dismissal, so for example if the employee is bringing a claim for disability discrimination, the contents of the protected conversation will be admissible
• if anything said or done during a protected conversation is considered ‘improper’ by the tribunal, it may become admissible. Examples of what might be considered improper behaviour include all forms of victimisation, harassment and discrimination, physical assault and aggressive behaviour.

In the recent case of Gallagher v McKinnon Auto Tyres, the Employment Appeal Tribunal decided that only giving the employee 48 hours to consider the offer put forward during the protected conversation and informing the employee the meeting was simply going to be a return to work interview (as opposed to a protected conversation) did not constitute improper behaviour. However, it should be noted that this decision is contradictory of the ACAS guidance which states that 10 calendar days should be given to an employee to decide whether or not to accept any offers put forward to them.   this means that a different tribunal may well find that the same circumstances as this case may be viewed as improper and thus no protection would apply.

The best advice is to use protected conversations with caution. They offer no protection in cases involving discrimination, or indeed wrongful dismissal, and if a judge hears of the conversation, it will be difficult to ignore when considering the unfair dismissal element of any claim.

The full judgment can be found here.