Conducting ‘off the record’ conversations with employees

Frequently, employers and employees may get to a point where ‘the writing is on the wall’ and it often suits both sides to have a frank discussion over what it would take to amicably bring the relationship to an end.

Section 111A of the Employment Rights Act 1996 (ERA 96) allows employers to hold off the record conversations with employees that cannot be referred to in any later unfair dismissal proceedings (known as S111A conversations).

Such pre-termination negotiations can be treated as confidential even where there is no current employment dispute (in contrast to the requirement for the parties to be in dispute to be covered by without prejudice protection) or where one or more of the parties is unaware that there is an employment problem.

ORJ Top Tips for conducting a protected conversation under S111A:

• Start off with your open position before having any protected discussion. Set the issue (such as potential redundancy or capability) out in open correspondence on record first before having a protected conversation.
• Ask the employee if they would be willing to explore alternatives to the formal process and if they are willing to have an off the record conversation. Make it clear that if they wish to or refuse to have a discussion this will have no bearing on any future disciplinary/performance management process if the discussions are not successful.
• If the employee is willing to discuss, hold a meeting and explain that the conversation is confidential and as an alternative to continuing the disciplinary/performance management procedure the employer would be willing to agree the mutual termination of their employment under a settlement agreement.
• Explain the key terms of the settlement. After the meeting, follow up the meeting with any proposed terms in writing to the employee within a S111A letter and enclose the settlement agreement.
• Give the employee a reasonable period of time to consider the offer, the terms of a settlement agreement and to take independent legal advice. ACAS Code of Practice suggests providing the employee with a minimum of 10 calendar days to consider the terms of any offer.
• Mark all written correspondence with the employee, including the notes of the off the record conversation as ‘covered by section 111A ERA 1996’.
• If the employee is not willing to explore the possibility of settlement stop the conversation immediately.
• Ensure that the person conducting the section 111A conversation on behalf of the employer chooses their words carefully and does not say or do anything in the course of the discussions which could be discriminatory as this could result in protection of S111A being lost.

Protected conversations under S111A are a useful tool for employers in dealing with employment matters head on and at an early stage, but it is important to get the process correct, as failure to do so could render the conversations admissible in subsequent tribunal proceedings.

If you would like to discuss conducting protected discussions with us or require any further advice please feel free to contact us on 01785 223440