Protected Discussion Disclosure

[Armughan]

I would be grateful for your advice on the following point.

An employee went off sick due to stress arising from what he considers to have been an unfair, biased and discriminatory disciplinary process. The original allegations leading to suspension were not ultimately proven by the employer. However, the employee was nevertheless issued with a final written warning on matters which were not part of the original suspension allegations or disciplinary basis.

A few months into the employee’s sickness absence, an absence management meeting took place. During that meeting, the employer allegedly stated that the employee should leave the company within a week under a settlement agreement, otherwise he would be “kicked out anyway.” The employer described the discussion as a “protected conversation” or “protected discussion.”

My question is whether the employee would be permitted to disclose the contents of that discussion, and what was said during it, before an Employment Tribunal — particularly where the employee argues that the discussion itself formed part of unfair treatment, discrimination, victimisation, intimidation, or evidence of a predetermined dismissal process.

I would appreciate your view on the extent to which “protected conversations” remain inadmissible in circumstances involving alleged improper behaviour, discrimination, whistleblowing detriment, or procedural unfairness.

[ULA]

A protected conversation, also know as pre-termination negotiations is governed by Section 111A of the Employment Rights Act 1996. It allows employers and employees to discuss a potential exit or settlement agreement without the risk that the conversation will later be used as evidence in an ordinary unfair dismissal claim, provided certain conditions are met. Protected conversations can occur even if there is no existing dispute between the parties

Even where the conversation qualifies as pre-termination negotiations, the statutory protection is confined to ordinary unfair dismissal proceedings under section 111 of the Employment Rights Act 1996. It does not provide against all forms of litigation.

If an employee brings a claim for automatically unfair dismissal, discrimination, whistleblowing detriment, breach of contract or wrongful dismissal, the content of the discussion may be admissible. Section 111A(3) expressly limits the reach of the provision in this way.