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Currently, if an employer utters words such as “Wouldn’t it be best if we just agreed to part company?”, the employee can resign and claim constructive unfair dismissal, citing the employer’s breach of ‘mutual trust and confidence’ that is fundamental to an employment relationship.
To avoid this situation and to enable these conversations to take place, the government is proposing to introduce the concept of ‘protected conversations’. The content of these conversations, held between an employer and an employee “with a view to the employment being terminated on terms agreed between the parties”, would be inadmissible as evidence in any subsequent employment tribunal case.
Unfortunately, if something “improper” arose during the protected conversation, the tribunal would be able to take the conversation into account. What will be regarded as “improper” and how it is proposed that a tribunal will determine this without hearing details of the ‘protected conversation’ remains to be seen!
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