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Do I? Don’t I? Whether to engage in protected conversations

You have been meaning to get to grips with that challenging staff member for some time, but it has never quite reached the top of the priority list. It continues to niggle, you know they aren’t delivering what you want, their attitude goes against the culture that you are trying to foster and encourage, you cant just put your finger on it. So whats stopping you? Not enough tangible evidence to present? Not enough time to address the issues? Fear of it going wrong? There could be lots of reasons for being reluctant to address the problem, but ultimately you know it’s never going to get any better. Then someone mentions “have an adult chat with them” … this is where they speak about “protected conversations” … you’ve heard of them right? So what are “protected conversations” could that be the key to solving all my employee problems … well, in true HR sitting on the fence style … it could be! Lets give you a few tips … Whilst a protected conversation is effectively an “adult” conversation that is “off the record”, which means it can not be effectively repeated or refered to in any legal proceedings, it will only protect against claims of Unfair Dismissal or Constructive Dismissal. It will not protect you from claims of Discrimination. If you have any risk of discrimination being levied against you, then you will need to have a “without prejudice conversation” which can only be legally engaged into if you are in a period of genuine dispute; which can be a standard grievance, disciplinary type issue. Before launching into a protected conversation, you should first check as to whether your employee is happy to proceed with any discussion. That they understand that “under section 111A of the Employment Rights Act” that a protected conversation is can not be refered to in law. Once they understand that they are happy to proceed on that basis, then you are ready to start the chat. Removing a negative influence to the business is not necessarily as costly as you might think, you could always consider positioning it in a way that protects there future employability, by giving them a way of avoiding a protracted and difficult formal performance management program. Employees often accept, pay in lieu of notice, a work related reference that indicates that they have resigned along with a small loss of office payment (sometimes it is not necessary) this element of the “exit package” could be tax free. If an exit is agreed always take the time to tie it up with a binding Settlement Agreement which is used to document that you have mutually agreed to withdraw from the contract of employment that exists between you. These documents are only binding, if the employee seeks legal advice on the document, which is signed by both the employee and a lawyer

Whilst protected conversations are often commercially sensible and save the business from a drain in cost and resource and allow the management team to focus on the profitable future of the division, it is best to seek specific advice through your HR partner.

For further advice and support, please do not hesitate to contact NucleusHR at


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