Kathryn Rodgers, face2faceHR talks about the pitfalls of growing a business.
“Hiring is always a big decision for my clients, and I love seeing their teams grow. However, like all other aspects of life, recruitment decisions don’t always turn out the way we expect – and in a small team, running a lengthy formal procedure isn’t always an option.
“Offering an employee, a settlement agreement to sidestep formal processes and legal complications requires delicate handling. It’s crucial to approach the subject cautiously to prevent the conversation from being used against you in potential legal proceedings. Employers typically rely on two mechanisms for such discussions: the ‘without prejudice’ common-law principle and ‘protected conversations’. Understanding their nuances is key to making an informed decision.
“The ‘Without Prejudice’ rule shields discussions aimed at resolving disputes from being used as evidence in legal proceedings. However, its application is contingent upon an existing dispute, such as ongoing legal proceedings or a foreseeable likelihood thereof. Merely labelling a conversation as ‘Without Prejudice’ doesn’t guarantee protection. Consequently, discussions initiated amid grievances or disciplinary actions might not qualify.
“Protected conversations were introduced to facilitate discussions even in the absence of a formal dispute. By designating a conversation as ‘protected’, employers aim to shield its details from being admissible in future legal claims. Yet, this protection is limited primarily to ‘routine’ unfair dismissal claims, excluding other potential claims like discrimination or breach of contract. Improper conduct during the conversation, such as coercion or intimidation, could also invalidate the protection.
“In instances where neither protection applies, seeking professional advice becomes imperative. Despite the limitations, analysing the likelihood of a claim and the employee’s disposition toward it aids decision-making.
If the employee is discontent and likely to accept a settlement, even if the conversation isn’t technically protected, it might still be worthwhile. Offering an attractive settlement could mitigate the risk of a legal claim.
“In conclusion, navigating settlement discussions demands a thorough understanding of legal safeguards and potential risks. Employers must tread carefully, weighing the benefits against the risks. While legal protections offer some cover, seeking expert guidance ensures informed decision-making, safeguarding both the business’s interests and employee relations.”
For no-nonsense advice on all HR matters, contact Kathryn Rodgers, face2faceHR on 07946 330 025.