Where there is a dispute between an employee and a worker it has always been a possibility for the employer and worker to have a ‘without prejudice’ discussion with the aim of seeking to resolve the dispute. Such a discussion, if genuinely aimed at resolving the dispute cannot be used by any party in any subsequent legal hearings; this is called the without prejudice rule. However, as the case of BNP Paribas v. Mezzotero showed where an employer used this rule to tell an employee that they should either take a financial settlement and resign or otherwise be dismissed this could well amount to a fundamental breach of the employee’s trust and confidence in the employer enabling an employee to claim constructive dismissal and rely on the allegedly ‘without prejudice’ discussion. At any such meeting the employee is unlikely to have a right to accompaniment by a trade union representative unless that meeting was itself a formal grievance hearing. This is somewhat perverse particularly as it is conceivable that that trade union representative is in fact representing the employee in formal legal action that may have already been commenced. This situation is unhelpful but is not a commonly used tactic by employers, at least in unionised settings.
The situation was changed somewhat by one of the Lib Dem-Conservative employment law ‘reforms’, that of the Protected Conversation. This idea of the protected conversation is found in section 111A of the Employment Rights Act 1996 (introduced by s. 14 of the Enterprise and Regulatory Reform Act 2013). Although similar to the without prejudice rule the protected conversation is different in that there is no requirement that there is an existing dispute or disciplinary matter for the protected conversation to take place. The ‘reform’ the last government instituted was that any of the discussions in a protected conversation could not be relied upon by an employee in any future employment tribunal claim for ordinary unfair dismissal. This is a recipe for employer abuse, which was highlighted in consultation responses, such as those from Thompsons.
In it’s consultation response Thompsons Solicitors spelled out clearly why the right to accompaniment should be applied to protected conversations:
In capability or conduct scenarios the employee may well see the writing on the wall and expect a difficult conversation. However, because the scope of the proposals is so wide there may not be such a warning and a protected conversation will be out the blue. Genuinely productive discussions will be impossible where the employee feels ambushed, unprepared or isolated. It will be important for the success of these measures to prevent a 5 o’clock call to the office, or a conversation in a corridor.
We therefore believe that the discussion should be held by written invitation and on notice. Up to 48 hours notice should be adequate and will minimise the period of anxiety for all concerned. Because of the very serious nature of the discussion, the risks of abuse, the difference in relative bargaining positions and the fact that emotions may run high, we believe that the employee should have the right to be accompanied at that meeting.That companion could help support the employee, and act as honest witness. It is common for HR to accompany a manager in these circumstances, and the same opportunity for support should be extended to the employee. We would therefore urge that s.10 Employment Relations Act 1999 be extended to cover the protected conversations process.
It will not come as too much of a surprise that s.10 of the Employment Relations Act 1999 remains unchanged despite the new category of meetings and potential for abuse.
It is however true that the accompanying ACAS Code of Practice on Settlement Agreements is unusually strong (compared to its lame offering in CoP 1) and even though not legally enforceable that trade union accompaniment should be allowed and encouraged:
13. The parties may find it helpful to discuss proposals face-to-face and any such meeting should be at an agreed time and place. Whilst not a legal requirement, employers should allow employees to be accompanied at the meeting by a work colleague, trade union official or trade union representative. Allowing the individual to be accompanied is good practice and may help to progress settlement discussions.
This is good advice but, as set out, it is not the law. An employer does not need to allow it (but the recent High Court case of Stevens which I will post on in due course may cast some doubt on this). Again, given a rep is among the category of persons whom must be involved in any actual settlement agreement this denial seems a nonsensical one.
But what of those cases where an employer refuses to allow trade union accompaniment? I think in such circumstances unless the employee actually wants to leave the employer then the member is best advised to simply decline the consideration unless a rep can be actively involved. If the employer refuses to accommodate this then that is itself a good sign that the offer is not being made in good faith and the employee will be best advised to ensure (by declining to take part in any protected conversation) that any future employer conduct is unprotected and can be used in any subsequent employment tribunal unfair dismissal claim.
BNP Paribas v. Mezzotero  IRLR 508
Stevens v University of Birmingham  EWHC 2300 (QB)