It seems like just yesterday we were kicking off 2019 and wondering what the year would hold. Now we are at the final employment law update of 2019 and it is fair to say that it has been an interesting year.
Key areas such as holiday pay and employment status have been a constant, but there have also been some interesting developments such as recent cases looking at the limits on philosophical beliefs. Take a look on our resource hub for a review of the updates from earlier in the year.
But 2019 isn’t over quite yet and we’ve got our usual array of cases to share with you this month. There are cases covering:
- The risks associated with giving the wrong label to a dismissal
- New ACAS guidance on supporting employees during the menopause
- How changes to an investigation report by a legal advisor will affect the fairness of a dismissal
- The approach balancing conflicting protected characteristics
- Non-statutory guidance on the use of confidentiality or non-disclosure agreements in discrimination cases and,
- What is and is not protected as a philosophical belief under the Equality Act.
- There is also some interesting research on the impact of a ban on employees accessing their work emails outside of work.
For full case updates from the list above, you can sign up to receive our newsletter here.
In this month’s blog, we’re focussing on what we can take from Harrison v Aryman UKEAT/0085/19/JOJ.
This case deals with protected conversations under s111A of the Employment Rights Act. This concept was introduced in 2013 to give employers and employees more scope to have discussions about parting company where the employment relationship is not working out.
However, the reality is that these conversations are not as ‘safe’ as they sound.
Firstly, the protection only applies to unfair dismissal claims. The conversation may therefore be admissible in the event of a more complex claim e.g. discrimination.
Secondly, the employee can say ‘no’ meaning their employment will continue. In such cases, the result tends to be a very strained working relationship and the employee is likely to challenge any subsequent management and suggest dismissal is a foregone conclusion. Plus, any ‘improper’ conduct will remove the protection.
In this case, an employee resigned and claimed constructive dismissal after a series of alleged discriminatory acts relating to pregnancy and sex. She relied on a settlement proposal sent to her shortly after she announced she was pregnant as the last straw. The employer argued that the proposal was a protected conversation and therefore inadmissible. Whereas the employee claimed that it amounted to discrimination and should be allowed into evidence.
The Employment Appeal Tribunal agreed with the employee and concluded that as the claim automatically unfair, pregnancy related dismissal, s111A did not apply and the content of a protected conversation could be used in evidence.
So, what can we learn from this case?
1. Be prepared for the conversation to be disclosed
If you have the discussion on the basis that it might be disclosable in subsequent proceedings, you will ensure that you do not undermine your position. Any employee can introduce a claim of discrimination or automatically unfair dismissal at any time. This will mean that unless your conversation is ‘without prejudice’ it may be disclosable. However, that does not have to be fatal to the case. If your proposal is based on genuine concerns or is positioned as a response to an employee’s concerns, it will not necessarily amount to a breach of trust or result in any subsequent claim succeeding.
2. Plan carefully
Despite being supported by legislation, these conversations are inevitably awkward. This awkwardness can lead to managers making inappropriate comments, giving unfounded assurances or just not having the conversation. Careful planning will help; a script or at least a structure for the conversation will keep it on track and make sure the employee understands what is being offered and why.
3. Have a fallback plan
If the employee does not accept the offer, how will you address whatever has resulted in the conversation? If you are likely to need to follow another management process e.g. performance management, refer to that in the discussion. If you position the settlement as an alternative to a formal process, the employee knows what their options are. If they choose not to accept the offer there should be no surprises when that process starts. This will not remove challenges down the line, but it will make them much easier to respond to.
We’re looking forward to keeping you up to date with all the latest employment law developments in 2020. Have a great Christmas and New Year!
The Vista Team