“Protected Conversations”Employers and Employees

16th November 2013
“Protected Conversations”Employers and Employees image

“Protected Conversations”Employers and Employees

New law came into force on 29th July 2013 which provided that in certaincircumstances evidence of ”pre-termination negotiations” between an employer and an employee cannot later be used in evidence in an unfair dismissal claim by an employee. 

Prior to 29th July 2013 when a “dispute” had arisen between an employer and an employee e.g. the employee had already started a claim or intimated a claim the parties could have a “without prejudice” discussion (i.e. off the record) with a view to resolving the dispute.  The “without prejudice” label would mean such discussions could not be referred to by an employee in any subsequent Tribunal claim. 

The new law seeks to deal with the difficulties of being able to have “without prejudice” discussions when there is no “dispute”, e.g. when an employer thinks that “it is not working out”.  Under these proposals an Employment Tribunal would not be able to take account of any offer made or discussions prior to the termination of the employee’s contract where the aim was to bring the employee’s contract to an end on “agreed” terms.  This is however only limited to employee’s making claims for unfair dismissal.  This sounds great but Daven Naghen, head of our Employment Team, comments as follows:-

“The new rules only relate to claims brought by employees for unfair dismissal, and such conversations are not protected say for the purposes of a claim for discrimination. Furthermore if there is say a joint claim of unfair dismissal and discrimination, then it is likely that the Employment Tribunal will hear evidence of the conversation as part of the discrimination case. Therefore the employer cannot necessarily count on the fact that such conversations will be protected. 

Furthermore the rules will not apply if the Employment Tribunal consider that the behaviour of the employer is “improper”, giving the Employment Tribunal a wide discretion as to whether or not to hear evidence of such discussions.  “Improper” behaviour could for example cover things such as not allowing the employee a reasonable amount of time to consider a proposal or telling an employee that if he or she does not agree terms then he or she will be fired in any event. 

Therefore there are absolutely no guarantees that any such conversations between an employer and an employee will be protected. 

ACAS has provided a Code of Practice (which an Employment Tribunal must take into account) and a Guide.  However I would strongly advise any employer that before commencing any difficult conversations with an employee relating to the possible termination of the employee’s contract that legal advice is obtained on how to approach and deal with the conversation.”

If you need any help or guidance on this issue then please do not hesitate to contact Daven on 01775 722261 or email Daven at daven.naghen@maplessolicitors.com or by writing to 23 New Road, Spalding, Lincolnshire PE11 1DH.

Maples supporting Macmillan Coffee Morning image

Maples supporting Macmillan Coffee Morning

On 29th September 2017 Maples Solicitors LLP will be hosting a coffee morning as part of Macmillan’s “World’s Biggest Coffee Morning”.

Tea, coffee and cakes will be served from 10:00am until 1:00pm and all donations received will go to Macmillan Cancer Support to assist them with providing medical, emotional, practical and financial support to those facing cancer and their families.

At the same time, Maples will also be running a free Wills, Lasting Powers of Attorney and Probate clinic so that whilst you are in the office you may take the opportunity to discuss any of these with one of the Private Client Team with no obligation to commit. You can use the time to raise any questions you may have about making a Will, who you could appoint as Executors, whether you need a Power of Attorney or how a Power of Attorney works, for example.

Maples hope to see their existing clients join them for the coffee morning and very much look forward to meeting new people- everyone is welcome!

If you would like to discuss any matters in relation to Wills, Lasting Powers of Attorney or any Probate related matters prior to the coffee morning then please contact one of the lawyers in our private client team:-

Jane Mawer- jane.mawer@maplessolicitors.com
Jamie Dobbs- jamie.dobbs@maplessolicitors.com
Faye Blair- faye.blair@maplessolcitors.com

Or telephone the office on 01775 722261 and ask to speak with one of the team.

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Gemma Mayer LLB

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Daven Naghen LLB

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Faye Blair LLB

Faye was excellent, sensitive and acted very well to the time constraints we faced. Great service and dealt with compassion at such sad times made the process less painful very professional.

Jamie Dobbs ACILEx

Over the last forty years I have cause to deal with many law firms both in a personal and professional capacity, including some ‘top’ London Companies. In all of those dealings I have never found anyone as proactive and so willing to offer help and advice as Jamie Dobbs. During the last two years Jamie guided my parents through the completion of Lasting Powers of Attorney. Helped myself with the use of the LPA and recently dealing with Probate and Estate Administration following their death.

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Claire Smith FCILEx

Claire Smith has been amazing in every way. I highly recommend her and I am so grateful for all her help. She’s professional on all levels, reliable, extremely organised and I will be recommending her to everyone. I’m very lucky to have had her representing me and I can’t thank her enough. She is an asset to Maples. Thanks so much Claire!

Anita Zaborniak

We found it a pleasure to deal with Anita Zaborniak, she was most helpful and informative and kept us up to date with the progress of the purchase of our new home. If we were to move again we wouldn’t hesitate to use Maples again.