Protected conversations and improper behaviour
As the furlough scheme winds down and employers have to start contributing to the wages of those members of staff who have been furloughed, many are starting to review their staffing requirements.
Unfortunately, this means that compulsory redundancies will become inevitable at many workplaces. However, many employers are choosing to avoid the pain associated with compulsory redundancies by using the protected conversation regime and offering enhanced redundancy packages conditional upon the signing of a settlement agreement.
Whilst this is perfectly lawful, employers who opt to go down this route need to be aware of the risks of inadvertently committing an act of ‘improper behaviour’ as doing so could render the conversation admissible in subsequent tribunal proceedings.
ACAS guidance states that it is ultimately up to an employment tribunal to decide what constitutes improper behaviour with regard to a protected conversation, but provides the following examples:
- all forms of harassment, bullying and intimidation, including through the use of offensive words or aggressive behaviour;
- physical assault or the threat of physical assault and other criminal behaviour;
- all forms of victimisation;
- putting undue pressure on a party; and
The type of ‘improper behaviour’ we come across the most is that of putting undue pressure on a party. ACAS gives the following examples of what this means in practice:
- not giving the reasonable time for consideration of the offer (which is defined as being 10 calendar days); and
- an employer saying before any form of process has begun that if the offer is rejected then the employee will be dismissed.
It is also worth noting that this is a two-way street. It is less common but employees can (and do) initiate protected conversations with their employers to discuss exit terms. An employee who threatens to undermine their employer’s public reputation if they do not agree to their terms will also be guilty of improper behaviour and their conduct can be referred to in subsequent tribunal proceedings.
Protected conversations are a useful tool for effective employee management but employers need to be fully aware of the rules and ensure they are followed before making an offer to an employee.