Protected conversations and improper behaviour

“Protected conversations” about the termination of employment are not disclosable as part of ordinary unfair dismissal proceedings. The intention behind this is to enable employers and employees to have off-the-record discussions about agreed terminations without those conversations then being used against them if a settlement is not reached and there is a claim for unfair dismissal.

There is an exception where either party’s behaviour during a negotiation is considered “improper” and in those circumstances, evidence about the discussions can be used in the Employment Tribunal.  

In Gallagher v McKinnon's Auto and Tyres Ltd the Employment Appeal Tribunal dealt with an allegation of improper behaviour by the employer.

Mr Gallagher had sought to use evidence of the pre-termination negotiations in his claim for Unfair Dismissal, arguing that the employer had behaved improperly. The Tribunal did not agree with him and neither did the Employment Appeal Tribunal.

Whilst the legislation does not define improper behaviour, the Acas Code of Practice on settlement agreements gives a non-exhaustive list, which includes behaviour such as:

• Harassment, bullying and intimidation
• Physical assault
• Victimisation
• Discrimination
• Putting undue pressure on a party, for example:
  • Not giving reasonable time for consideration
  • Telling an employee that if they reject the offer, they will be dismissed
  • An employee threatening to undermine the employer’s public reputation

In this case, the EAT decided not to overrule the Tribunal’s finding that the following behaviour by the employer did not amount to “improper behaviour”:

• Telling the employee that his role was redundant. This was not improper behaviour because there remained in the Tribunal’s view, scope for exploring suitable alternative employment. Telling him his role was redundant was not therefore the same as telling him that he would be dismissed if he did not agree to the settlement agreement. The EAT also contrasted an employer telling an employee facing disciplinary proceedings that if they did not agreement, they would be dismissed (which is a clear pre-judgement of the disciplinary process and therefore “improper”) with an employer legitimately commencing a discussion with an employee by saying that their role had been identified as redundant
• Having a protected conversation in what the Claimant understood was a meeting about his return to work. The EAT accepted that meeting about one matter can legitimately shift to something else. Importantly, the EAT was operating on the basis that the Tribunal did not uphold the Claimant's contention that his employer had lied about the purpose of the meeting. The decision may have been different if the employer had deliberately lied about the purpose of a meeting. The Tribunal judge was not particularly comfortable with the employer’s approach of having a protected conversation in a meeting with the employee understood to be a return to work meeting, but found that it fell short of improper behaviour.
• Giving the Claimant only 48 hours to accept the settlement offer. Whilst the ACAS Code refers to a recommended period of 10 days, this related to the acceptance of a written offer. In this case, where a verbal offer only had been made, it was not improper to seek an acceptance in principle within 48 hours. The EAT found that whilst another Judge might legitimately have come to a different conclusion, the Judge’s decision in this instance was not so perverse as to be overturned on appeal.

Whilst in this case, the Claimant was not able to use his account of the protected conversation in his unfair dismissal claim, the case is a useful reminder to employers and employees that if their behaviour does overstep the line, then protected conversations can be referred to in unfair dismissal claims.