Protected conversations and improper behaviour

Many employers who opt to have protected conversations with their staff can unwittingly lose the protection that the regime offers because they have engaged in ‘improper behaviour’, which 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 during 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
• Discrimination.

The type of improper behaviour we come across the most is that of putting ‘undue pressure’ on an employee. ACAS gives the following examples of what this means in practice:

• Not giving the reasonable time for consideration of the offer (which ACAS guidance defines 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. Although less common, employees can (and do) initiate protected conversations with their employers to discuss exit terms. An employee who threatens to undermine their employer’s reputation publicly 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 inviting an employee to consider a settlement offer.

If you have any questions to how to conduct a protected conversation, please  call our Employment Law team today on 0113 207 0000.