16 December 2016 #Employment
Protected conversations were introduced to allow employers to have an “off the record” discussion with an employee concerning their exit. Evidence of pre-termination negotiations is inadmissible in ordinary unfair dismissal claims unless there is improper behaviour. Unfortunately for the employer in Lenlyn UK Ltd v Kular, they discovered this exception the hard way.
The employer in this case held a ‘protected conversation’ with the claimant who was accused of misconduct. The claimant was told if he did not resign he would face disciplinary action as his conduct had, according to an external report, been “grossly negligent.” The claimant was told the offer remained open for six days.
The Claimant resigned and claimed constructive dismissal. The tribunal (with which the EAT later agreed) allowed the protected conversation to be referred to because the “impropriety exception” applied. The tribunal was influenced by the fact that the Claimant had been given less than a week to consider the settlement agreement and the external report had been misrepresented as it only stated that the claimant may have been negligent and that further investigation was needed.
This case serves as a stark reminder to employers that protected conversations may not always be “protected.” Aggressive behaviour or comments, or as in this case, misrepresentation and short timeframes may lead to a finding that there has been improper behaviour. Employers should note that, as a general rule of thumb, ACAS guidance recommends that employees are given at least ten calendar days to consider a settlement agreement to avoid an inference of undue pressure.