Negotiating a graceful exit

Negotiating the exit of an employee is one of the hardest jobs faced by employers. Although the personal aspect can be difficult, from a legal point of view, ‘protected conversations’ where the employer negotiates an exit with the employee, can help mitigate risk, as long as certain requirements are met, including there being no ‘improper conduct’.

Protected conversations can make raising issues with an employee, such as performance and capability, more straightforward. Should an employee subsequently bring an unfair dismissal claim, protected conversations are normally inadmissible as evidence.
However, employers need to be mindful of correct conduct and be aware of the following:

• There is a risk of presenting the offer as a done deal at an early stage. To avoid this, it is important to make sure that the employee understands that there are other options available to them, and what those options might be.
• The employer must also give the employee reasonable time to consider the offer and to answer any questions the employee may have, particularly if the discussion comes as a surprise.
• Protected conversations do not give employers carte blanche to say and do what they like in any circumstance. Presenting an ultimatum could leave the employer without the protection they were looking to achieve by having the protected conversation in the first place.