Since July 2013, we have had in place the law designed to implement the concept of “protected conversations” – the idea is that employers (or employees) can start a dialogue about an agreed exit from the business without the employee (or employer) being able to rely on the conversation in court if nothing comes of the discussion.
The Appeal Tribunal has just considered its first case on these provisions in Faithorn Farrell Timms LLP v Bailey. The Tribunal decided that the confidentiality of the exit discussions extended to the fact that negotiations had taken place, and not just the content of the negotiations. It also decided that neither the employer nor the employee can waiver this confidentiality and opt to tell the tribunal about the discussions. The confidentiality will apply not just to the discussions between the employer and employee, but also to the inter manager discussions on the subject at the company.
It can be pretty confusing knowing when it is appropriate to put “without prejudice” on correspondence and what that means, and generally how to approach conversations with employees about their departure from the business, to minimise risk. We are here to help with this kind of situation.
Disciplinary and grievance procedures
Another ACAS Code has just been looked at by the Appeal Tribunal, this time the Code on disciplinary and grievance procedures: http://www.acas.org.uk/media/pdf/f/m/Acas-Code-of-Practice-1-on-disciplinary-and-grievance-procedures.pdf
If employers unreasonably fail to follow this Code, and the case goes to an employment tribunal, the tribunal can increase any award made by up to 25%. The same also applies to employees who unreasonably do not follow the Code – they can have their award reduced by up to 25% if they succeed in their claim.
All employers should have good Disciplinary Procedures and make them available to staff and managers alike, so do get in touch if you feel that yours need a refresh.