Back

Imperial Square is partially closed, however our offices remain open. If you are visiting us please access our reception at 34 Imperial Square from the top of the road.

Get in Touch Menu

It’s not working out

22 November 2016

The termination of employment can be a tricky business and will almost always carry the risk of employment tribunal claims. Of course, if there is a genuinely fair reason for termination, such as gross misconduct or redundancy, the risk of an employee bringing tribunal proceedings will be minimal, but it is never completely non-existent.

It is this underlying risk which encourages many employers to use settlement agreements to limit the risk of any future claims by their ex-employees.

Settlement agreements (formerly compromise agreements) ensure that employees who sign them waive their rights to bring a claim against their employer. In return, employers pay compensation which the employee may not otherwise be entitled to.

Since the concept of ‘protected conversations’ was introduced in 2013, it has become much easier for employers to initiate severance discussions without the worry of prompting a constructive dismissal claim if the agreement is not signed.

If you make an offer to, or hold discussions with, an employee whilst they are still employed, with a view to ending that employment on agreed terms, that can amount to a ‘protected conversation’. Its effect is very similar to a ‘without prejudice’ conversation in that an employee cannot refer to it in support of a subsequent unfair dismissal claim if the negotiations fail.

However there are limitations; the conversation will still be admissible in a claim for discrimination. It could also be admissible in any claim if, for example, undue pressure has been put on the employee to accept the proposal. As a result, employers should take legal advice before starting a protected conversation.

Jenny works in our employment law team. She helps clients with the full range of employment related matters including TUPE, defending tribunal proceedings, contractual matters and general employee relations and HR work. She has wide experience working for SMEs, owner-managed businesses and organisations employing in excess of 1,500 staff across the UK. 

We're here to help
Disclaimer: All legal information is correct at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation - contact us; we’d be delighted to help.
Contact
Jenny Hawrot LLB (Hons)
Partner
View profile
Jenny Hawrot
Related services
Share this article
Resources to help

Related articles

Constructive dismissal & delayed resignation

Employment & business immigration

Constructive dismissal and delayed resignation can prove to be difficult situations for some employers. Our team of experts look into a case that could help when looking to tackle issues…

Hayley Ainsworth BA, MSc
Associate, solicitor

Embracing neurodiversity at work

Employment & business immigration

We’re supporting Neurodiversity celebration week, which takes place from 18th to 24th March 2024. Here, our employment law team share insight into neurodiversity in the workplace and what employers can…

Jenny Hawrot LLB (Hons)
Partner

Immigration law: What to expect in 2024

Employment & business immigration

2024 is shaping up to be full of change in the immigration sphere. Visa fees were increased by around 10-15% in October 2023 (you can find the new fees here),…

Hayley Ainsworth BA, MSc
Associate, solicitor
Contact us