UK Employment Law Coffee Break: Join us at our webinars, protected conversations, and sexual harassment

Join us at our latest webinars: Employment law reform, remote working and investigations

At our In-house Lawyer Talks, a week of webinars aimed at in-house lawyers, our employment team will be looking at the new government's employment law reforms and other recent developments affecting the workplace. You can register here.

Employment partners Olivia Sinfield and Anna Elliott will also be looking at the implications of remote working overseas and investigations during our In-house Lawyer week. Please do sign up to these webinars, and to any others in our programme which are of interest.

EAT rules on improper behaviour and protected conversations

The Employment Appeal Tribunal (EAT) has recently looked at the statutory provisions which enable an employer to hold a protected conversation with an employee with a view to potential termination of employment on agreed terms.

Section 111A of the Employment Rights Act 1996 excludes evidence of a "pre-termination" negotiation in subsequent unfair ordinary dismissal proceedings where it meets the statutory criteria. Where a discussion is not protected (or does not otherwise fall within the "without prejudice" rule), it will be admissible in evidence with the consequence that an employer may be judged to have pre-determined an employee's dismissal in the absence of a fair procedure. However, a pre-termination conversation will not benefit from the statutory protection where a tribunal finds that anything said or done was "improper, or was connected with improper behaviour".

Acas has produced a Code of Practice on Settlements which will be taken into account by tribunals in considering whether a discussion is protected for the purposes of unfair dismissal proceedings. Examples of improper behaviour include "putting undue pressure on a party", which may include not giving an individual a reasonable time for consideration of the proposed agreement (with a minimum of ten days recommended in respect of a written proposal) or saying before any form of disciplinary process has begun that if a settlement proposal is rejected the employee will be dismissed.

Offer of settlement made at Return to Work meeting

The claimant was off sick for two months, during which period his role was successfully covered by management. His employer therefore determined that his role was potentially redundant.

The claimant was invited to a meeting to discuss his "return to work". However, at the meeting his potential redundancy was raised and he was offered an exit package, subject to signing a settlement agreement. The claimant was given 48 hours to consider the proposal and informed that if he rejected it then a redundancy process would be commenced. The employer subsequently provided the claimant with a breakdown of the enhanced severance payment on offer but ultimately the claimant did not accept the offer within 48 hours and he was invited to a formal meeting to discuss his potential redundancy. The claimant was subsequently dismissed and claimed unfair dismissal.

The Employment Tribunal determined as a preliminary issue that the discussion which had taken place was not a "protected conversation" under the Employment Rights Act 1996. The Employment Appeal Tribunal agreed:

• The claimant's dismissal was not inevitable if he rejected the settlement offer; he had simply been informed he was at risk of redundancy and that a formal redundancy process would commence.
• While it could be viewed as "unfair" to invite the claimant to attend a meeting held out as being to discuss his return to work, this "was not impropriety capable of ousting the default position of inadmissibility". The EAT highlighted Acas guidance that "sometimes a meeting about one thing, such as a disciplinary investigation, can legitimately shift to a discussion about severance and settlement terms as the conversation unfolds".   

• While the Acas Code on Settlements provides that as a general rule a minimum period of ten calendar days should be given to consider a settlement offer, this related to "the proposed formal written terms of a settlement agreement and to receive independent advice". Here the 48 hour window given to the claimant simply related to the verbal offer and that had he accepted "the pre-termination negotiations would have continued" until at some point he was presented with a settlement agreement.

The employer's conduct did not therefore cross the line into becoming "improper" meaning the discussions at the return to work meeting were protected under section 111A.

What does this mean for employers?

Despite their limitations, protected conversations can be a useful mechanism enabling an employer to agree a termination settlement without having to go through a lengthy disciplinary, grievance, redundancy or performance improvement procedure and in circumstances where there is not an existing dispute for the purposes of the "without prejudice" rule or wider legal risks, such as discrimination claims.

However, this case is a useful reminder that employers must ensure that to benefit from the statutory protection, anything said or done is not "improper, or.. connected with improper behaviour"; if improper behaviour is found, a tribunal may consider evidence of a pre-termination conversation to such extent as it considers just.

While this decision gives comfort to employers seeking to rely on the section 111A protection, it also emphasises that these decisions will inevitably turn on their facts. Here, had any of the circumstances been different (for example, the vulnerability of the claimant in the situation, the manner in which the employer handled the meeting, if there was evidence that a dismissal would certainly follow rejection of the offer), the tribunal may have potentially reached a different conclusion. The EAT noted that a different judge "may have reached a different conclusion about the sufficiency of [the 48 hour] period".

It also reinforces the need for employers to ensure that meetings are handled sensitively and calmly. The claimant here had contended that the employer's representatives "were rude and aggressive towards him…; that they swore at him and were unfairly critical of him; and that he was presented with a 48-hour deadline to respond to a written compromise agreement that was on the table during the meeting". However, it was found that the claimant's evidence on these matters was not "credible or reliable" and that this was a meeting "with no aggression or raised voices".   

Sexual harassment: New Acas guidance and EHRC tools

We have reported in previous Coffee Breaks on the new statutory duty on employers to take reasonable steps to prevent sexual harassment in the workplace. As well as the updated Equality and Human Rights Commission (EHRC) guidance for employers to support them in complying with this new duty, Acas has published revised guidance.

The EHRC has also now published further guidance which provides for a checklist, action plan and monitoring logs (originally designed for the hospitality sector but which the EHRC suggests can be adapted to suit other workplaces).

Areas highlighted include:

• Communicating with staff: how to promote a culture of zero tolerance and let your staff know you take sexual harassment seriously.

• Changing the working environment: controlling the physical and social environment that people are working in to make it as safe as possible.

• Working practices: policies and procedures to make sure you know when sexual harassment happens and how it is dealt with.

The EHRC notes that employers will need to consider how the checklist is used across their organisation effectively, including ensuring it is appropriately tailored (with additional actions added as appropriate) and individuals are supported in using it.

We are supporting clients with their compliance in respect of this duty, including risks assessments, updating policies and training for employees, managers and HR. Please contact your usual Osborne Clarke contact to understand how we can assist you further.