In my recent blog How to protect your difficult conversations with employees Part 1, I looked at the ‘without prejudice’ rule and the newer statutory ‘pre-termination negotiations’ rule, their similarities and their key differences.
In this part 2 of my blog I am going to look at how you can use either or both regimes when planning your difficult conversations with employees and how to ensure that your ‘off the record’ conversations stay that way.
Let’s have a look at that first.
‘The Level Playing Field’ – how to avoid your private conversations becoming public
‘Without prejudice’ conversations will not stay that way if there is evidence of ‘unambiguous impropriety’ taking place during them. Likewise, pre-termination negotiations will not stay that way if there is ‘improper behaviour’. I can assure you that if you avoid using ‘improper behaviour, you will always avoid ‘unambiguous impropriety’.
Put simply, if you use any dodgy tactics to persuade your employee to take a settlement offer, you are risking the entire contents of any ‘off the record’ conversation you had with that employee becoming public knowledge in an Employment Tribunal claim. In order to help you steer a clear path, here is my list of do’s and don’t’s to remember when embarking on a difficult conversation with an employee:
Do’s
- It may sound obvious – but make sure you have an offer to make! In the case of Crespigny v Information Security Forum Ltd 2014, an Employment Tribunal found evidence from a ‘pre-termination’ meeting would be admissible in an Employment Tribunal hearing because the employer had acted improperly in not making any offer to the employee. The evidence was that the employee had been told ‘have you thought about resigning?’ When he replied ‘no‘, he was simply told that he would have no job by the following Monday (a couple of working days later) and that the company wanted to end his employment in a constructive way.
- Do set out, in neutral terms, what the ‘options’ are for the employee. It is perfectly acceptable to set out factually what the alternatives are for the employee if a settlement cannot be reached – including the possibility that disciplinary or poor performance proceedings may be commenced (or continued). The ‘no no’ here is to say that the employee will be dismissed if they don’t take the deal. It is, however, acceptable to say that the deal will not stay on the table forever and that, if it is withdrawn, it will not be re-offered and then a formal process will have to (re)start.
- Do allow your employee some time to consider any offer made. Once you have got to the point of wanting to make an offer to an employee, it is natural that you will want to just ‘get on with it’. However, remember that this might be a bolt out of the blue for your employee and they might need a little time to consider their options. ACAS advises giving an employee 10 working days to consider an offer.. This is not a strict legal requirement and feels a very long time. In our experience, employees tend to engage in the process much more quickly than that. Again in Crespigny v Information Security Forum Ltd 2014 the ET found that giving the employee just a couple of working days to consider his ‘options’, was too short a timescale.
If you want to keep the employee focused then I would always suggested giving 5 working days for the employee to come back with their views on any offer made. Be prepared to be flexible – if they come back and say they are interested, but need to organise some legal advice, it is worth considering extending any deadline you have given. Also the more recent EAT case of Lenlyn UK Ltd v Kular decided that a short time limit and the reason given for it were both ‘unacceptable’ and had undoubtedly put pressure on the employee.
- Be open about what type of conversation you are having. Remember to tell your employee that you are using the pre-termination negotiations route (or that the conversation is ‘without prejudice’ – if you are relying on that rule), and that the settlement discussions are expected to be inadmissible in tribunal proceedings and they will have no bearing on any subsequent performance management or disciplinary procedures if settlement discussions break down.
- Consider allowing your employee to be accompanied at any meeting to discuss an exit. ACAS recommends this, but again it isn’t a strict legal requirement. It is one to weigh up. If the employee will find the conversation very difficult and could usefully use the support, then it is worth making the offer. Also, bear in mind, who is having the conversation on behalf of the company? If it is a ‘shoot from the hip’ style (i.e. loose cannon) manager and you are really not sure they can be trusted to keep the conversation ‘on point’, then that might be another reason want to offer the option to be accompanied (or, at least for you to be in attendance).
Don’t’s
- Don’t use any form of harassment, bullying or intimidation during your conversation. This includes things I have mentioned above, from not giving enough time to consider an offer or stating that the employee will be dismissed if they don’t take the offer, right through to threats of physical violence or other intimidating behaviour. (I very much doubt you would threaten to punch them, of course, but you never know…)
- Don’t mislead your employee during any conversation. In the EAT case of Lenlyn UK Ltd v Kular, the EAT criticised the employer for “substantially misrepresenting” an accountant’s finding in a report on the employee. The company told the employee that the accountant had found his work to grossly negligent. In fact, the accountant had stated that there would need to be an investigation, not that she had found that the employee had been grossly negligent.
- Don’t say anything in a protected conversation that you would not be prepared to give evidence on at an Employment Tribunal. This is particularly so when using the ‘pre termination negotiations’ route as, ultimately, it only covers claims for ordinary unfair dismissal and therefore if your ex-employee goes on to bring a different type of employment law claim they could seek to rely on the fact that your conversation took place and its contents.
- Don’t be surprised if your employee is the one who starts the conversation – they get the same protection too and you cannot use the fact that they have approached you to have a protected conversation as a way of intimidating or victimising them in the future if settlement discussions don’t go anywhere.
So, now you know the rules. Next, you need to plan your conversation. That will be the subject of my next blog.
I advise on difficult conversations every day of the week. So if you would like to chat one you are planning through, please give me a call.
Anne-Marie Boyle
