When sensitive workplace issues arise, such as underperformance, conduct concerns or possible redundancy, employers are often unsure how to start an honest conversation with an employee without creating unnecessary risk. This is where a protected conversation can be a valuable option. It provides a framework for confidential discussions that cannot usually be used in an unfair dismissal claim, allowing both parties to explore solutions in a more constructive way.
What is a Protected Conversation?
A protected conversation is a private and confidential meeting between an employer and an employee where the subject of ending employment on agreed terms can be discussed. The idea is to allow open and frank dialogue without fear that what is said will later be used as evidence in an unfair dismissal claim.
In many cases, a protected conversation leads to the offer of a settlement agreement, a legally binding contract which sets out the terms of departure. These agreements typically cover areas such as financial compensation, notice arrangements, reference wording and confidentiality clauses, all of which connect back to the wider requirements set out in UK employment contracts and conditions.
For employers, a settlement agreement can help avoid lengthy disputes and formal processes, while for employees it provides certainty and security during a difficult transition. You can read more about this in our settlement agreement blog.
Can I Refuse a Protected Conversation?
Yes, employees are not obliged to take part in a protected conversation. If invited, they may decide that they do not wish to engage in the discussion or simply want to seek advice before proceeding. For employers, it is important to remember that the conversation should be approached with care. It should not come across as a threat or an attempt to pressure the employee, but rather as an opportunity to explore a mutually acceptable resolution. The manner in which the conversation is handled can make a significant difference to whether it is received positively.
Can an Employee Ask for a Protected Conversation?
While protected conversations are commonly initiated by employers, there is nothing to prevent an employee from requesting one themselves. For some, it may provide a more straightforward way of addressing concerns than going through a formal grievance or tribunal process. If an employee feels that the working relationship is no longer sustainable, raising the possibility of a protected conversation can open the door to a solution that avoids further conflict.
Protected Conversations and Redundancy
Protected conversations are particularly useful in situations involving redundancy. For example, where a business is restructuring and wishes to offer enhanced terms to an individual rather than going through a lengthy redundancy consultation, a protected conversation can create space for a confidential and pragmatic discussion. This not only helps employers manage difficult workforce changes with sensitivity, but also ensures that employees have the opportunity to consider options in a private setting.
It is worth remembering, however, that while a protected conversation limits how the discussion can be used in an unfair dismissal claim, it does not prevent employees from raising issues of discrimination or whistleblowing. This is why employers need to be cautious about when and how these conversations are introduced.
Why Seek HR Support?
Handled well, protected conversations can offer a way forward in otherwise challenging circumstances. Mishandled, they can leave both employers and employees feeling frustrated and exposed to legal risk. Timing, choice of language and the overall approach all play a crucial role.
At MYHR, we provide expert support to businesses who need to manage these delicate situations. Our experienced consultants advise on whether a protected conversation is appropriate, help structure the discussion, and guide employers through any resulting settlement agreement.
For ongoing support across all areas of employee relations, our HR Retainer Services provide direct access to senior HR professionals who understand both the legal context and the practical needs of your business.
With the right guidance, protected conversations can move from being daunting to becoming a constructive tool that protects your business and your people.