There are various scenarios where employers can request an “off the record” with an employee. Often these conversations occur when there are issues dealing with a woman’s return from maternity leave or maybe because there are going to be changes (including redundancies). The law allows employers and employees to have such conversations, and if the requirements are followed, then the conversation is known as a protected conversation and it can’t be referred to in any subsequent claim for unfair dismissal.
Can I have an off the record conversation with an employee?
By Katie Ash – Banner Jones
Katie has over 18 years’ experience in dealing with all aspects of HR and employment law matters and is a longstanding member of the Employment Lawyers Association.
Katie acts for both employers and individuals and has a wealth of experience in representing clients before the Employment Tribunal, the Employment Appeal Tribunal, the Court of Appeal and in mediation, including judicial mediation.
As an employer, you can have a have a protected conversation with an employee at any time.
Protected conversations are statutory creations which allow employers and employees to have honest and frank discussions without fear of what is being said being referred to in employment tribunal proceedings for unfair dismissal.
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What is an off the record conversation called?
An off the record conversation can be a protected conversation under section 111A of the Employment Rights Act 1996 or it can be a ‘without prejudice’ conversation.
Protected conversations allow employers to put forward dictation offers to employees without fear of what is said being referred to in any subsequent unfair dismissal claim. A protected conversation can take place at any time, whether or not the employer and employee are in dispute.
A without prejudice conversation can only take place where there is an existing dispute and an offer is being made to settle that dispute. This could be where an employee has expressed dissatisfaction with something an employer has done on an informal basis, but frequently is where the employee has raised a formal grievance.
Can an employee request a protected conversation?
Whilst employers are normally the party which instigates protected conversations, there is nothing to stop an employee approaching an employer to ask that they consider offering the employee a termination package to leave.
Does an employee have to accept termination offer?
An employee doesn’t have to accept any offer you make to them and you can’t treat them less favourably for failing to accept an offer. You can’t take their refusal into account in any subsequent internal process you undertake.
The employee wants to leave. Now what?
If the employee has decided that they do want to leave, then you should set out the terms of the offer in writing and send this to them. This can be done with a letter or emailing detailing all of the terms of the offer, but more often than not, employers will send the written offer in a settlement agreement. A settlement agreement is a legal contract between the employer and the employee setting out the terms of the offer. It is a legal waiver of claims that the employee must enter into in order to give up their claims and receive whatever it is you have offered them, usually a sum of money.
You need to give the employee at least 10 days to consider the written offer and mustn’t put too much pressure on them. If you do, this could be seen to be improper behaviour and if they decided not to go ahead with the settlement agreement, they could refer to what has been said in an unfair dismissal claim.
The employee will need to take legal advice from a specialist employment law solicitor. This is because in order to be legally binding and to ensure that they cannot pursue any claim against you arising from their employment or its termination, they have to understand that this is what they are doing in signing the settlement agreement. It is the solicitor’s job to advise them that this is what they are doing and to take them through the terms of the settlement agreement.
You will be expected to pay for the employee’s legal advice in taking advice on the settlement agreement. This is on top of any amount of compensation, salary, holiday and notice pay you are paying in the settlement agreement.
If The employee is still on maternity leave when an offer of a settlement agreement is made, and is still entitled to some maternity pay (statutory or contractual) then you should ensure that the balance of what is owed to them is paid as part of the settlement terms in addition to any other compensation monies that you have offered.
Is it illegal to record a conversation at work in the UK?
There is no legislation that prohibits recording a face-to-face meeting by a business that is a non-public body in the UK. However, issues may arise when the business wishes to use the covert recording as evidence in court as there may be an argument that such covertly obtained evidence should be inadmissible for having an adverse effect on the fairness of the proceedings.
Banner Jones Solicitors can help you if you need help in preparing for a protective conversation with your employee and can help you with ensuring that the necessary legal documentation is in place to ensure that you give effect to the settlement of any claims. They can also assist you in negotiations with the employee and / or their legal representative.
Looking to support an employee with information here for My Employer wants an “Off-the-record chathttps://mmbmagazine.co.uk/my-employer-wants-an-off-the-record-chat-with-mewhat-do-i-do/” with me… What do I do?
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