Employers and employees can now (under Section 111A of the Employment Rights Act 1996) have a protected “off the record” conversation provided the purpose is to explore the possibility of a potential settlement agreement. This means that, subject to some limited exceptions, for example if there has been improper behaviour, anything said by either party can’t be used as evidence in an unfair dismissal claim.

It is, however, important to remember that the protected conversation rule only applies to unfair dismissal claims; not other types of claim such as discrimination or breach of contract.

Either party can initiate a protected conversation but it is really important to take legal advice first to avoid making costly mistakes. At aiMac-hr we specialise in providing the right advice for employers and employees.  An employer will certainly want to know the best way to approach things and an employee will often have questions concerning things like confidentiality, representation and tactics to adopt.

The financial amount is usually the most important aspect of any settlement agreement for both parties but there are other important non-monetary considerations too, including whether a reference and/or outplacement support will be provided and a potential release from any restrictions in a contract of employment.

Negotiation tactics are crucially important in securing the best deal, whether you are an employer or an employee. This is where the expertise of aiMac-hr really comes into play because we know the right way to approach things and the best strategies to adopt. Sometimes it is better to focus on goodwill, whilst at other times it might be necessary to threaten dismissal/legal proceedings; or even a combination of both. No two situations are ever exactly the same and we can advise accordingly.

An employer must give an employee a reasonable period of time (10 days) to consider any proposed settlement agreement.