Briony Richards writes for People Management on navigating pre-termination negotiations

In an article for People Management, Briony Richards, Associate, provides guidance for businesses on exiting employees without fear of legal repercussions.

The article discusses the complexities involved in ending an employment relationship from the employer's perspective. While employees can resign with minimal formalities, employers must be careful about their reasons for dismissal and the processes they follow to avoid legal liability. Employers may opt for a settlement agreement to provide a quicker and mutually agreeable exit strategy, particularly when there are potential claims or a desire to avoid protracted processes.

However, offering a settlement without following a formal dismissal process can be risky. If settlement talks fail, the employee could use the offer as evidence in future litigation, suggesting that any subsequent dismissal process was not genuine. To mitigate this risk, settlement discussions should be conducted 'off the record' using 'without prejudice' communication, which cannot be used as evidence if there's an existing dispute. But this protection doesn't apply if no dispute exists yet.

To address this, Section 111 of the Employment Rights Act 1996 provides protection for pre-termination negotiations, allowing for 'protected conversations' that cannot be used in unfair dismissal claims. Despite this, the protection is limited to unfair dismissal and does not extend to other claims like discrimination or whistleblowing. Moreover, the protection is void if there is 'improper behaviour' such as intimidation or threats during the negotiation.

Employers are advised to clearly label discussions as 'off the record', present the settlement as an option without obligation, maintain a willingness to follow a fair process, and allow the employee sufficient time to consider the offer, typically 10 days as per Acas guidelines.

Read the full piece in People Management here.