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New law just in: It is now easier for you to part ways with employees!

22/05/2013 | ACUMEN BUSINESS LAW

Is one of your employees not performing? Doesn't fit in? Just isn't right for your business? Are you worried about the rigmarole involved in letting them go? 

We've all been there… 

As an employer, what can you do about employees who are not performing or who don't fit in or are simply not working effectively? Employment rights are such that it is often a long winded and complicated process and employers are often faced with strict legislation and the risk of claims for unfair dismissal if it is not followed to the letter. This position may now be resolved with the new pre-termination negotiations rules which came into force in July this year. 

Off the record conversations 

Under the new legislation, an employer is now able to have an 'off the record' conversation with an employee if they wish to discuss potentially ending the employment relationship. As long as there is no 'improper behaviour' (see below), such discussions could be regarded as confidential and not admissible as evidence in employment tribunal claims. Employers should also ensure that employees are given a reasonable time to consider any offers made without any undue pressure and whilst not a legal requirement, it has been recommended to allow employees to be accompanied during any meetings to avoid allegations of undue pressure. 

You cannot do an Alan Sugar! 

In the 'off the record conversation' employers can put the termination alternative to an employee, as an option. The new law does not allow employers to tell employees that their employment is terminated or, in Alan Sugar's style, tell the employee 'you're fired!' As an employer you can tell the employee that things are not working very well, explain the reasons that have led to the conversation and ask the employee if, they were unhappy too, whether the option of parting ways would suit them. 

Termination is an one option, disciplinary is another- but the threat of dismissal is not! 

The employer can discuss the termination option as explained above, but can also state, as a matter of fact, that there is the possibility of disciplinary proceedings if an agreement is not reached. However under no circumstances should an employer say or imply that an employee will be dismissed if an agreement is not reached. Therefore, employers should be cautious when addressing employees to ensure that they do not cross any boundaries. This may mean that employers cannot be as frank and honest as they would like. 

Apparently we all need to behave ourselves 

It would be regarded as improper behaviour to make discriminatory comments or act in a threatening way. It will also be regarded as 'improper behaviour' if, as part of the 'off the record' conversation an employee made threats such as to undermine the company's public reputation if the company does not sign a settlement agreement with them. 

The following list provides some examples of improper behaviour. The list is not exhaustive: 

All forms of harassment, bullying and intimidation, including through the use of offensive words or aggressive behaviour. 

  • Physical assault or the threat of physical assault and other criminal behaviour. 
  • All forms of victimisation. 
  • Discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership. 

If an employer or employee complains of improper behaviour a tribunal have the power to lift the cloak of confidentiality and allow the conversation to be used as evidence. Therefore, both parties should be careful to not say anything that could be held against them in court. 

But don't these 'off the record' conversations already exist under the guise of the 'without prejudice' rules?

No! For 3 reasons: 

(1) A without prejudice protection can only be used when there is a genuine attempt to resolve a dispute. Whereas the new rules allow the option of termination without necessarily engaging in any attempt (genuine or otherwise) to resolve the relationship. 

(2) The fact that without prejudice rules can only be properly relied on in court where it was used as an attempt to settle a dispute, means that without prejudice conversations are only relevant where there is a dispute between the employer and the employee. Whereas the new rules allow the 'off the record' conversation when things simply don't work or aren't right- without there necessarily being a dispute. 

(3) Under the without prejudice rules, any correspondence that was marked 'without prejudice' and which was made in a genuine attempt to settle a dispute is inadmissible in court (i.e. everything that was said between the parties remains confidential and the parties are not allowed to show it in court). However, often employees are not always aware that there is a problem and if there is not a dispute, a without prejudice conversation would not be regarded as confidential. The new regulations state that employers and employees will be able to enter into confidential negotiations with a view to reaching an agreement to end the employment relationship and that these conversations cannot be used in evidence against the employer. 

Is my 'off the record' conversation with my employee guaranteed to remain confidential (and won't be allowed to be mentioned in court)? 

No…(sorry!) 

The confidentiality given to the 'off the record' conversation under the rules only applies to cases of unfair dismissal. It will not apply in other proceedings such as whistleblowing, discrimination or breach of contract claims. Therefore, whilst an employer may think a conversation is confidential, if an employee decides to bring a claim asserting other complaints other than unfair dismissal, it may be that the conversation becomes part of the evidence. Time will tell how the courts will deal with this complication! 

Get it right! 

Please feel free to give me a call to discuss your matter to make sure it is dealt with properly from the outset, just in case that 'off the record' conversation is not the last and everything you said or wrote will then be viewed with a magnifying glass. For a fixed fee of £100 (+VAT) we can provide you with a practical, step by step guide on how to handle this process. 

I had the chat…what's next? 

While the new regulations create a shift to a more flexible workforce and allow a greater freedom of communication between employers and employees it is not without its difficulties - it is important to get it right! I cannot emphasise enough that the terms of any agreement needs to be recorded in writing in a Settlement Agreement (previously known as a compromise agreement). Firstly, this is a legal requirement, but secondly it is the only proof of what has been agreed between you. 

Please feel free to email me (Nicole Humphreys, Head of Employment Department) on Nicole.Humphreys@acumenbusinesslaw.co.uk or call me on my direct line on 01273 447069.

For all your personal legal needs visit our sister firm Acumen People

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