Welcome to the next step in my employment tribunal journey.
In my last instalment I covered the PCP which I believed should have been the first red flag in my sham redundancy. As per the PCP, by mid March 2020 all of the part time workers were now at home and all full time workers had been given the opportunity to work at home or continue to work from the office.
in this article we move onto what happened next.
We begin on the morning of 10th of June 2020, without prior warning, I received a call from the general manager.
He began by informing me that the reason for his call was due to the COVID pandemic, the company not in the greatest of positions so they were considering a company restructure.
Based on this information, he went on to ask if I would be willing to enter into a protected conversation in order to have further discussions about it. Obviously, at the time I had no idea what a protected conversation was, he had caught me completely off guard and there had been no prior warning that this call was going to happen.
My manager told me that a protected conversation just meant that an employer and an employee could have an open and transparent chat and although ‘Protected’ conversation was a bit of a legal term, it was what it was.
With the benefit of hindsight I now realise that I should have asked for a little time before entering into that conversation to establish the consequences of a protected conversation and its legalities but at the time I simply agreed because he had indicated that whatever the company had in mind could potentially affect me and also because at that time, I had no reason to question their duty of care toward me so I honestly believed that it wouldn’t have any detrimental impact either now or in the future……How wrong can a person be!
During the protected conversation, I was told that the company were going to restructure the business and they were looking to cut 16 hours from both the payroll department and the administration department, which is the department that I worked in.
He said that if I would be willing to accept an offer of voluntary redundancy, the company would pay me an additional £1000 which would be tax free, on top of my statutory redundancy pay.
At this time, I had been working for the company for over 10 years. The idea of the protected conversation was in order to keep things confidential because they didn’t want to upset any of the other staff, so I could not talk about it with other people for the time being.
He told me that if I didn’t accept the offer, he would be willing to conduct a redundancy consultation and go through the process. However, the company had already completed a matrix scoring with a pre-selected criteria and he regretted to inform me that based on the outcome of that scoring matrix, my job wouldn’t be secure and I would probably be made redundant anyway.
Because of the the 16 hour element mentioned earlier, I did ask him if it was just the part time workers that this was aimed at or was it everyone.
He replied by saying that he had some other people to call he couldn’t tell me who because it was confidential, but they were looking at everyone. I now know that wasn’t true and he didn’t have any others to ring and the redundancy was purely aimed at part time workers.
To say that I was a little shell shocked is an understatement at this point!
He told me that I could have 7 days to think about it and was able to discuss it with my family. Before the call ended he said that if I wanted to, I could get some legal advice on the situation and the call ended.
I went into a complete panic, I remember ringing my partner who was at the supermarket at the time and telling him to leave the trolley because he had to come straight home, I was going to be made redundant and I didn’t know what to do, I went into a total meltdown.
looking back now with the information that I know and the extensive research into the subject of protected conversations, I realise that there were lots of red flags during that call.
The consequences of entering into that conversation caused complications for me in the Employment Tribunal process, so lets cover a little bit more about them here:
What is a protected conversation?
Conducted correctly, a protected conversation is basically an ‘off the record’ chat, which allows the employee and the employer to have an open discussion.
It allows the employer to raise any concerns that they may have including your continued employment or performance, by informing you of their concerns in a protected conversation could mean that they are likely looking to terminate your contract by means of redundancy or an alternative exit procedure.
There are 2 types of communication that afford the employer a guise to cover their possible intention towards you
- A Protected Conversation
- A Without Prejudice Communication (Verbal or Written)
The difference between a protected conversation and without prejudice communication is that in order for a protected conversation to take place, there can be no existing dispute, so for example if you had previously raised a grievance or a health and safety concerns or if there has already been a concern raised about your performance then you should not be having a have a protected conversation.
In this instance, if there were an existing dispute in play, it would become without prejudice which I will be covering in my next instalment. It is important that you understand the difference and also the potential consequences of entering into either if you are unsure.
What Are The Benefits Of A Protected Conversation?
From an employers perspective, the main plus point is because it can limit the employers liability toward you.
It could considerably lessen their chance of ending up involved with you in an unfair dismissal claim or otherwise through an Employment Tribunal and it gives them a chance to raise any concerns that they have about your performance or your continued employment with them.
It also allows the company to orchestrate your speedy departure from the company without having to go through any formal process or procedure which saves them time and resources whilst achieving a pre-determined outcome.
Based on my experience, a settlement offer or an exit package will probably feature at some point. This allows an employer to quickly and easily terminate your contract on an agreed voluntary basis.
Likewise, there can be benefits to the employee too,so if you’re looking to move on, or if for any reason you feel that the environment is no longer right for you anymore, it could be in your interest. There’s certainly no harm in entering into a protected conversation if it’s right for you, but you do need to be aware of the potential issues that it may cause if the issues raised cannot be settled to both parties satisfaction like in my case.
Alternatively, If you have an issue that you would like to raise with your employer, you are able to request a protected conversation with them.
However, in this instance, you may want to consider initially putting your concerns in writing. Once accepted, ask them then if they would enter into it without prejudice conversation instead. If your employer already knows your concerns beforehand then it gives them time to prepare, they may know what remedy you’re seeking which can achieve a swifter outcome.
Regardless of who instigates the communication, the same legal consequences apply.
What Should Happen In A Protected Conversation Between An Employer and Employee?
There needs to be three elements present in a protected conversation.
1. It has to be based on genuine concerns that your employer has about you, the business or your continued employment within it.
2. A settlement offer or an exit package must be discussed or made during the conversation.
3. A protected conversation cannot be held when there is an existing dispute, as we covered earlier, that would need to be held as a without prejudice conversation.
Before any form of communication takes place, an employer should also advise you of the legalities surrounding the conversation and the potential consequences and give you the opportunity to either ask questions or possibly delay the conversation until you have had the opportunity to research the positives and negatives for yourself.
Do You Have To Accept The Offer Of A Protected Conversation By Your Employer?
Absolutely not! You are not legally obliged to enter into any protected conversations and you are well within your rights to decline.
If your employer takes you by surprise and you feel that you are not comfortable to go ahead, you have every right to ask for a reasonable amount of time to get further advice before proceeding.
Although your employer is not legally obliged to do so, if you feel that you would feel more comfortable to proceed with a companion or a work colleague to accompany you, it would be good practice for your employer to allow it even though they don’t have to. This would demonstrate that their intentions towards you are genuine.
If you are happy to go ahead, it would be good idea to make sure that you are aware of how the conversation will be documented, if at all.
As it is, in effect, off the record, your employer may not be intending to take any notes whatsoever. If this is the case then make it clear that you would like to do so.
Even better, ask your employer if they have any objection to you recording the conversation, they can refuse this request, but if they do agree make sure that at the beginning of the recording both parties can be heard giving their consent. The recording of the call between myself and my former employer along with the written correspondence afterwards was very helpful to me in a preliminary hearing that was held prior to my final hearing regarding the authenticity of the conversation between myself and the general manager.
Not only can this be helpful for you to reflect back on the conversation afterwards and refresh your memory about the matters discussed, but also because there are instances where a protected conversation is void which means that you would be able to use the information discussed in an employment tribunal hearing should the need arise.
Once You Enter Into A Protected Conversation
Never feel pressured into giving an answer or responding to any questions that are asked. You should be allowed a reasonable amount of time for consideration.
Likewise, if any form of settlement or exit packages are offered, your employer has to give you a reasonable amount of time to consider anything discussed.
Ask about the possible outcomes from the start. For example, if we are unable to reach an agreement what will happen next. Your employer is able to discuss various outcomes or possible alternatives that could be looked at should negotiations fail.
That said, the response should never be threatening or come across as a foregone conclusion because at this point any outcome should be unknown and any thoughts on your continued employment should remain impartial.
In my case, I was told at this point that the criteria and scoring had already been carried out and as a result, if I were to turn down the settlement offer made to me then I would likely be made redundant regardless. In my opinion, they sailed extremely close to the wind on this one and it was one of the contributing factors that lead me to question the protection offered to them in regards to the conversation, I will be delving further into that in a later article.
Be clear on all details before you leave. For example if an exit package has been put forward, ask if a reference going to be included, if there’s a monetary settlement make sure that you ask how it’s been calculated and check that it’s correct. This particular element is very important as you will likely be asked to sign a settlement agreement for both parties to agree that any financial agreement is in full and final settlement, your employment will then cease and you will have no right to any further claims.
When it comes to notice periods, ask when your contract will officially terminate with them.
Settlement agreements can sometimes include a confidentiality clause, you need to be clear on what the scope of that clause is. Who you can discuss the matter with going forward with and what has to be kept confidential. Most importantly, you also need to understand what implications there could be if they feel that this is breached, likewise they should be a clause to prevent your employer discussing the matter with others so you need to know what you can do if they breach that agreement.
You are entitled to legal advice before agreeing or more importantly, signing any form of legally binding document and your employer should offer to pay for this, mine did not which should have been a red flag for me at the time. Although I was told that I could seek legal advice, there was never any mention of them helping me to fund the cost.
If you are not offered legal advice funded by your employer and you are unable to afford the costs yourself, there are various outlets that offer free services to employees that may be able to help. The Citizens Advice Bureau, ACAS or The Law Centre Network also offer a one hour free consultation if you fall within one of their postcode locations.
What Are The Consequences Of Entering Into A Protected Conversation?
A protected conversation is not admissible in an unfair dismissal tribunal claim, neither party can submit the protected conversation, including anything that was said or done in it, as evidence to substantiate their claim. This means that even if vital issues were discussed in the conversation which could possibly prove your claim single handedly, the employer has already covered themselves because they will be aware that you cannot make any reference to it whatsoever throughout the proceedings.
It seems common for protected conversations to take place without prior warning, this puts the employee at an immediate disadvantage because not only are they caught off guard like myself, in most cases they will not be aware of a protected conversation and its potential outcome.
When Is A Protected Conversation Not Protected?
Protected conversations are only inadmissible in specific claims through an employment tribunal, such as unfair dismissal. There should be no restriction imposed on their submission as evidence for claims such as discrimination or disability.
You must always be clear on the evidence that you are allowed to submit beforehand, failure to do so could lead to dire consequences throughout your claim if you are reliant upon eveidence that is refused because of the legality surrounding them.
There are a few narrow elements surrounding protected conversations that can render them void or not worthy of the annonimity usually afforded to them.
This would be most likely if something classed as unambiguous impropriety or improper behaviour took place at any time during the conversation.
If there is any improper behaviour from your employer towards you, which includes either verbally or physically then it could potentially render the conversation admissable.
It could be in the form of a threat that something is going to happen to you. Likewise, if they put undue pressure on you to accept an offer or settlement, it could be cause for you to dispute the protection offered should you want to rely on anything that took place during the conversation in an employment tribunal where your claim relates to unfair dismissal.
Unfortunately, there are no actual guidelines at the moment about what constitutes as improper behaviour so it relies solely on your individual case.
It is important to remember that if you have had a protected conversation with your employer which has lead to formal proceedings, don’t just assume that it was protected. Revisit it and check all of the details.
When it comes to employment related matters, forewarned is most certainly forearmed.
Please do not make the same mistake as I did and rely on your employer to execute their duty of care toward you.
There is nobody that has your best interest at heart like you do, put the onus on yourself to research and understand the implications of any discussions or negotiations before entering into them, failure to do so could have a devastating outcome on not only your life, but that of your family too, I should know!
I will be back soon with my next instalment, until then please find below the links to my written reasons and judgements along with links to websites which you may find helpful and the website link to my other tribunal blog posts.
As always, if you find yourself engulfed in the trecherous seas of an employment tribunal, never forget to give yourself a moment to breathe.
It can be so easy to get swept up in all of the things that you have yet to do that we forget to give ourselves the credit that we deserve for all of the things that we have already achieved.
Some days are hard….beyond hard but remember, whatever stage in your journey that you may be at….
“In order to appreciate the true beauty of a rainbow, we must first endure a little rain”
*As always, opinions expressed in my blog posts are purely my own and based on information which I understand to be true at the time of issue. This is not intended to be advice and you must always make sure that you seek independant help before and during any legal proceedings.