This document provides lay summaries taken from multiple sources and is not exhaustive or legally binding. Always consider the text of the original sources or linked documents to be definitive.
What is a protected conversation?
A protected conversation is a conversation usually about negotiating the termination of employment by way of a settlement agreement. It is an ‘off the record’ conversation. Whatever is said by either party in a protected conversation cannot normally be referred to as evidence in an unfair dismissal claim to an employment tribunal. A useful guide to protected conversations is here: https://redmans.co.uk/guide/protected-conversations-at-work/
Is my job at risk if I have been called to protected conversation?
Sometimes protected conversations are used to resolve a pre-existing dispute between the employer and the employee, but other times there is no known pre-existing dispute. If you reject a voluntary exit as part of a protected conversation, your decision needs to be respected and you cannot be discriminated against for this decision. If your employer wishes to terminate your employment they would still need to follow statutory redundancy or the University’s capability procedures.
What should you do if you are invited to a protected conversation?
Don’t panic. You cannot be dismissed or made redundant in a protected conversation. Any agreement made in a protected conversation must be mutual.
It is good employment practice for the employer to allow the employee to be accompanied in a protected conversation. This can be a workplace colleague or a union representative. UCU members (who have been members >90 days) can ask for a UCU caseworker to attend with them. We would advise members to contact the branch using the casework request form as soon as they are invited to a protected conversation.
You are not obliged to accept the invitation to a protected conversation but it usually in the employee’s interest to at least hear about the option that it affords.
What happens during a protected conversation?
Usually, the employer will read fairly rigidly from a script, making the employee aware what a protected conversation is, agreeing on confidentiality, and making a proposal in the form of a settlement agreement.
Following the offer, the employer should allow the employee to ask questions. The following may be useful, depending on job family, for weighing up a decision on whether to accept any settlement:
- Why is your employer proposing to terminate your employment?
- How much are you being offered and how is that calculated?
- Will you be expected to work your notice period? If not, will it be paid out in lieu?
- Will you be expected to take your annual leave? If not, will it be paid out in lieu?
- Will you be offered a reference? If so, what will it say?
- What is the allocation towards the cost of legal advice?
- Will you be able to agree the statement that will be issued to your colleagues?
- Why is this particular termination date being suggested? Is there any flexibility here?
- Is there any possibility of retaining some kind of honorary status with the University?
- Are there any restrictions on future employment with the University?
- When is a decision needed? Is there any flexibility here?
- What is likely to happen if you don’t accept the settlement agreement?
You and/or your accompanying person can make notes during the meeting. If necessary, you can ask your employer to confirm the proposal in writing. This could be a draft settlement agreement or simply an email summarising the main points. This will help you to clarify what is being offered.
You’re not under any obligation to accept any proposed settlement agreement and you should not do so in the meeting itself. In fact, the law doesn’t allow you to accept it until you’ve taken legal advice on it.
If there has been “improper” behaviour by the employer or employee during the protected conversation, the protection may be lost. Improper behaviour includes bullying, harassment, discrimination or if the employer threatens an employee to take an agreement.
What happens after a protected conversation?
Your employer should give you a reasonable period of time to consider any proposed settlement agreement. ACAS recommends about 10 days. You should use this time to consider the financial implications (tax, pension) of the offer. You might like to contact a financial or your pension provider to discuss early retirement or other options during this time.
- https://www.uss.co.uk/for-members/guidance-and-financial-advice
- https://www.ucu.org.uk/quilterfinancialadvice
You can also use your workplace colleague or union rep to discuss the pros and cons of accepting or declining the offer. However, the decision is very much down to the employee as everyone’s motivations and circumstances are different.
If you wish to exit the employment and where you have leverage (eg. some case that the University might lose if it went to an employment tribunal; or a build up of goodwill), you might be able to negotiate by giving the employer a counter-offer, however the employer is under no obligation to change its offer.
You should respect the confidentiality of the offer. Failure to do so could lead the employer to withdraw the offer.
If you decide to provisionally accept the offer you should reply by the agreed deadline. HR will usually draw up a formal settlement agreement and provide this for you to seek legal advice. Your UCU caseworker can provide details of how to get legal advice through UCU’s legal partner. Once the settlement agreement is signed by both parties, it becomes legally binding.
