The Government has published details of proposals on "protected conversations", to be included in the Enterprise and Regulatory Reform Bill. The proposed new provision on "confidentiality of negotiations before termination of employment" was tabled as an amendment to the Bill, during the committee stage, on 19 June 2012.
Under the amendment, a new section will be added to the Employment Rights Act 1996 to provide that, when determining an unfair dismissal claim, an employment tribunal "may not take account of any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee". In effect, the provision allows an employer to hold a discussion with an employee with a view to terminating the employment under a settlement agreement, without the employee being able to rely on the details of the conversation as evidence in an unfair dismissal claim. It goes further than the "without prejudice" principle, as it applies even where no formal dispute has yet arisen.
The provision is limited to unfair dismissal claims only; employers would not be able to rely on a discussion being protected where the employee claims discrimination, or any other type of complaint. Further, the provision does not apply to automatic unfair dismissals (see Automatically unfair reasons for dismissal in the XpertHR quick reference section). The proposal also allows the tribunal to decide that it can take account of an offer or discussion where, in the tribunal's opinion, something has been said or done that was "improper".
Employment tribunal system to be reformed The XpertHR forthcoming law section looks at the Government's proposals for reforms to the employment tribunal system, including protected conversations.
Protected conversations: An unwelcome layer of complexity? In this article written in response to the Government's initial proposals on protected conversations, at the end of 2011, consultant editor Darren Newman asks if the proposals could set out to reduce litigation but in reality create a legal nightmare.
How to compromise employment disputes The XpertHR "how to" section gives practical guidance on the current law on settling an employment dispute.
The XpertHR FAQs section includes the following questions on the confidentiality of negotiations: