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Leaving employment by agreement – protected conversations

Tuesday, April 28, 2020

There are many ways in which an individual can leave his or her employment.  Often this involves complex legal procedures which can easily go wrong.  The easiest and most dignified manner in which an individual can leave, is by consent.

This involves protected conversations under Section 111A ERA 1996.

  1. The conversations are specific to employment.
  2. The discussions are not admissible in evidence.
  3. The discussions are entirely confidential and;
  4. If successful it avoids any form of unfair dismissal claim.

The difference to without prejudice discussions is that without prejudice occurs when there is a dispute you are trying to settle.  Protected conversations are where there is no dispute and you wish to avoid one.  The idea is they lead to a Settlement Agreement or departure on agreed terms.

Do’s and Don’ts

  • The initial conversation can be oral. The employer would be well advised to have an aide memoire to cover off the issues to be discussed.
  • You secure the agreement of the individual to a protected conversation having explained what it means. If they don’t agree, there is no conversation.
  • Resist improper behaviour such as bullying, aggression, undue pressure, sexism, racism or ageism. All of that can potentially remove the protection.
  • Make it clear the individual is free to reject any offer. Do not state that a rejection will lead to dismissal.  You can say rejection may lead to a redundancy process or disciplinary action (if misconduct is what has prompted your discussions).
  • Allow the individual reasonable time to digest what you have said. A week is usually enough.  Confirm your offer in writing.
  • Above all be generous. Make it clear that you will write a very positive reference.  Discuss an agreed internal announcement.  Look at any restraint of trade in the contract and whether you wish to maintain that or waive it.  Above all, calculate what you would pay say by way of redundancy and offer that plus a “sweetener”.

Remember the objective is to avoid complex legal process and for an individual to agree terms for departure that will protect the reputation of an individual and business alike.

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