In July a new regime of protected conversations was introduced to enable employers and employees to offer and discuss a Settlement Agreement in the knowledge that their conversations cannot be used in any subsequent unfair dismissal claim. The protected conversation will generally lead to a Settlement Agreement (formerly a Compromise Agreement).
ACAS have published a Code of Practice advising on the parameters within which those protected conversations should take place. Whilst not legally binding, Employment Tribunals will be interested to see that it has been followed.
The Code provides that there should be no improper behaviour in negotiating the terms. Examples of improper behaviour include bullying or intimidation, physical assault, forms of victimisation, any form of discrimination and perhaps most widely and most relevantly putting undue pressure on a party.
Most importantly if an employer says before any form of disciplinary process has begun that if a settlement proposal is rejected then the employee will be dismissed, then the conversations no longer have the protection of this regime.
In addition, the Code recommends that an employee is given a minimum of ten calendar days to consider the written terms of any proposal made to them and further that if a meeting is held to discuss the proposals that the employee should be accompanied by a colleague
These guidelines set out in the ACAS Code are mainly common sense and good practice and we are finding that many of our clients are using these protected conversations to manage their affairs and their staff.
If you require any further information in this area then please contact Mark Serby on 0114 266660 or email [email protected].
