There are going to many occasions when you need to exit an employee from the business in the quickest, least risky way possible. Settlement Agreements (the by-product of these exits) are a well-established part of the HR toolkit. Getting your employee to the point of accepting an offer will usually involve having some sort of ‘protected conversation’. In this blog I offer my top tips on how to achieve a successful outcome following a protected conversation.
Protected conversations are not to be confused with ‘without prejudice’ conversations. Protected conversations are used where there is no existing dispute between you and the employee and are often used as a simpler route than a formal dismissal process. ‘Without prejudice’ discussions however are used where there is a dispute between the parties.
1.Start with your open position first. This frames the conversation and will ultimately help with your negotiating position. So, what is the reason the employee might be leaving the organisation – is it redundancy? Conduct? Performance? Long term absence? A breakdown in the employment relationship? Or something else?
2.Don’t necessarily make an offer at the first meeting. Instead use it to set the scene and see if the employee is open to a conversation. If the employee is receptive, you could go on to talk terms or say that you can give an outline, but if the employee is interested, you can put something in writing.
3.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. This includes 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 It is, however, acceptable to say that the deal will not stay on the table forever and that, if it is withdrawn, it will not be re-offered and then a formal process will have to (re)start.
4.Plan your conversation before you have it. Use a script – this can then be adapted to any letter you might wish to send after the meeting. It will mean that you say everything you need to say at the meeting and not miss any important points – such as confidentiality
5.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. 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 suggest;
6. 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.
7. 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 to offer the option to be accompanied (or, at least for you to be in attendance).
8. Always have a Plan B. What if the employee doesn’t accept the offer or wants an amount of money that you are not prepared to pay? It is rare not to achieve a negotiated settlement, but it can happen. Always ensure that, if necessary, you are able to continue with your Plan B. If you are not willing to continue with Plan B, then your main option is to increase any settlement offer made.
1.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 (threats of punches have been known to happen!).
2.Don’t mislead your employee during any conversation. In the EAT case of Lenlyn UK Ltd v Kular already mentioned, 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 be ‘grossly negligent’. In fact, the accountant had stated that there would need to be an investigation, but not that she had found the employee had been grossly negligent.
3.Don’t say anything in a protected conversation that you would not be prepared to give in evidence at an Employment Tribunal. This is particularly relevant when using the ‘pre-termination negotiations’ route. This is because ultimately, it only covers claims for ‘ordinary’ unfair dismissal so 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 use its contents.
4.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 for a protected conversation as a way of intimidating or victimising them in the future if settlement discussions don’t go anywhere.
We regularly advise on all stages of a protected conversation through to settlement agreement. We mentor, coach and write scripts and advise on suitable packages. If you need to discuss a tricky issue that needs solving, give us a call and we can quickly work out the best way to get you to your desired outcome.