There are various scenarios where your employer may request an “off the record” chat with you. Often these conversations occur when there are issues dealing with a woman’s return from maternity leave. 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.
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.
My Employer wants an “Off the record Chat” with me… What do I do?
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First of all don’t panic! Whilst you might have just returned to work and be struggling with lack of sleep and keeping on top of your previously role, take some time to digest what it is that is being proposed and don’t be afraid to ask for some time to consider even the proposal to have a protected conversation
What is a protected conversation?
A protected conversation, often referred to as a ‘without prejudice’ or “off the record” conversation, usually comes about because your employer wants to make you an offer to leave work. The aim of these conversations is to have an open and honest conversation about your employment and if you’re interested in leaving the business, to mutually agree an exit. These conversations can’t be used in an Employment Tribunal claim for unfair dismissal (although they can be used in other claims) and are therefore said to be ‘protected’ and ‘off the record’.
However…your employer is not protected from having what they say referred to in a claim in the Employment Tribunal if the claim relates to discrimination.
What should I do if my employer asks me to have a protected conversation?
As stated above, don’t panic – and if you feel able, hear them out and see what they have to say. At this stage it’s all about listening.
You don’t have to make any decision and can take your time. The guidance is that your employer should give you a minimum of 10 days to consider any offer that may be put to you – once that offer is in writing.
We would suggest that you make a note of what is said to refer to afterwards. So, make sure you take detailed notes and ask your employer to put everything they are saying to you in writing – this could be in the form of a letter, but more often is in the form of a settlement agreement (more about that below).
If you need to, ask for clarity on some points. For example, ‘are you saying that you would not want me to come back to work, even to work my notice period?’. It is important that you ask if you are not sure, but remember that you can also ask afterwards once you have had time to think away from work and / or received everything in writing.
What happens after the protected conversation? Do I have to accept?
You do not have to accept any offer put to you and your employer can’t treat you differently for failing to accept an offer.
However, if you have suggested that you might want to think about the offer during the discussion or you have decided you do want to leave, then your employer should set out the terms of the offer in writing and send this to you. They might send you a letter detailing all of this, but more often than not, they will probably send you a settlement agreement. A settlement agreement is a legal waiver of claims that you must enter into in order to give up your claims and receive whatever it is your employer has offered you, usually sum of money.
You will need to take legal advice from a specialist employment law solicitor. This is because in order to be legally binding on you and to ensure that you cannot pursue any claim against your employer arising from your employment or its termination, you have to understand that this is what you are doing signing the settlement agreement. It is the solicitor’s job to advise you that this is what you are doing and take you through the terms of the settlement agreement. Your employer should pay for your legal advice in taking advice on the settlement agreement.
If you are still on maternity leave when an offer of a settlement agreement is made, and are still entitled to some maternity pay (statutory or contractual) then you should ensure that the balance of what is owed to you is paid as part of the settlement terms in addition to any other compensation monies that you may be offered by your employer.
Banner Jones Solicitors can help you if you receive an offer to have a protected conversation or are offered a settlement agreement.
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