Off the record conversations9.12.2013
Employers have always been cautious about having conversations with employees about sensitive issues, lest that conversation be seen as a breach of contract or prejudice any subsequent capability or disciplinary procedure.
Until recently there has been only one way to have a truly “off the record” conversation with an employee. This involved invoking the Without Prejudice moniker of lawyers. For this to be engaged there must be an existing dispute before the comments can be made. In practice, this usually meant starting a disciplinary or performance management procedure so that you were in dispute with an employee. Unfortunately, this often leads to increased hostility, rather than a means of exploring options as to instigate the dispute you would have to give full details of the issues that the employee was failing on.
Recent changes in employment law now allows employers to engage in discussions and negotiations about termination on mutually acceptable terms. These discussions will not be admissible as evidence in unfair dismissal claims without the need for the parties to be in conflict before the discussions are had. The arrangement works both ways and it is also open for the employee to instigate the discussion.
The hope is that it will avoid litigation and allow parties to explore and find mutually acceptable terms on which to part. There are, however, limitations to this. The discussions are only confidential in ordinary unfair dismissal claims, not automatic unfair dismissal (for example, based on whistleblowing accusations) and are not applicable to discrimination or breach of contract claims. The discussions will also be admissible if either party engages in improper behaviour. A non exhaustive list of types of behaviour that would meet this criteria is available in the ACAS code on this topic but would include a threat to dismiss or discriminatory words.
My advice is, therefore, to tread carefully. The new arrangements do not offer the flexibility and openness envisaged by the government. It is difficult to know at the point of the conversation what claims the employee will bring and therefore whether any words spoken will be admissible or not.