“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.

Dementia Friends image

Dementia Friends

Maples Solicitors are proud to announce that they have now joined to become Dementia Friends which is an Alzheimer’s Society initiative.

The private client department of Maples Solicitors prepare Wills and Lasting Powers of Attorney on a regular basis and this often involves dealing with clients who are suffering from dementia. The private client team pride themselves on spending as much time as is necessary to assist all of their clients, but those suffering from dementia often require additional assistance and time to ensure that they have fully understood the legal documentation that they are creating. The private client department are regularly complimented on the way they deal with such clients, whether this be explaining things to them in a clear and uncomplicated manner, spending time with them or putting them at ease.

It is a misconception that anyone suffering from dementia cannot make a Will or Lasting Power of Attorney. Only if someone lacks sufficient mental capacity are they unable to make such a document. It is therefore vitally important upon any diagnosis of dementia that legal advice is taken as soon as possible to make sure that your affairs are in order so that it is easier for your family to deal with your affairs if you are unable to do so yourself.

To become Dementia Friends, Maples Solicitors have pledged to develop their understanding of dementia and continue assisting clients suffering from dementia with their legal affairs in a respectful, friendly and efficient way that is not daunting making the process as easy as possible.

Read More


Gemma Mayer LLB

"I would highly recommend Maples Solicitors, especially Gemma Mayer, for any conveyancing work. The level of support and professionalism was excellent at all times. I also felt if I needed to ask or clarify anything that it was not an issue. Buying and selling a house is stressful enough, but Gemma helped me through it step by step."

Anita Toal LLB BA

"I think you are brilliant. You can use my comments above. You are efficient, friendly and quite clearly very good at what you do. Mainly you don’t leave people hanging around too long for." "So easy to talk to her and she understood what I wanted. She put me at ease and I cant thank her enough"

James Turner BA

James Turner was extremely helpful with our buying process. Everything went smoothly. We are very happy with the level of professionalism demonstrated by the office. Highly recommended solicitors. Will definitely do business with them again.

Daven Naghen LLB

"Daven provided an excellent service, from attending the first interview with me to the final court appearance. He filled me full of confidence that he would defend me to which he did and come out with an excellent outcome in view of my position that I had put myself in."

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 GCILEx

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.

Mike Pepper MA

Mike Pepper gave us excellent advice. He was always most helpful and accommodating giving lucid explanations every step of the way. Thank you Mike.

Donna Sandison FCILEx

Donna has been helpful and professional every step of the way during the process. Always on hand to answer any queries and totally professional and friendly at all times.