Frank Words

Monday 7th October 2013

Frank Words - Protected Disclosures - on 29th July 2013 Section 111A(3) of the Employment Rights Act 1996 now enables employers to have frank but fair discussions with employees as to their performance with a view to a settlement and lawful termination of contract. There is no statutory right to have a companion or trade union representative present but the accompanying Code of Practice on Settlement Agreements recommends it. However, it only renders inadmissible the discussion in respect of unfair dismissal claims. Any claims relating to discrimination or grounds for automatic unfair dismissal (such as whistleblowing) are not protected. Also you must avoid "improper behaviour", i.e. stating that the employee will be dismissed if they do not sign the settlement agreement or giving an unreasonable period of time to consider the offer (a minimum period of 10 calendar days is a safe bet). Take legal advice before having such a discussion with an employee or, if an employee, review the offer with a solicitor.