How to Have a Successful Protected Conversation at Work

What do you do when you know there is an employee issue in the workplace, but you’re unsure whether Capability or Disciplinary action is the right thing to do?

Understanding how to have a protected conversation can help you handle these challenging situations more effectively.

The key is ensuring that you, as the employer, are in the right legal and psychological position and that the employee is ready to consider options, including potentially ending their employment.

What Is A Protected Conversation Process?

A protected conversation at work does not require an existing legal dispute to take place.

It allows for informal, exploratory discussions between an employer and employee before issues escalate into a formal dispute — for example, when performance concerns arise that could lead to a Performance Improvement Process (PIP) or a Disciplinary Process.

These conversations can take place at any stage, as long as there is a genuine belief that a concern needs to be addressed.

Any communications should be clearly labelled “Without Prejudice Subject to Contract” and refer to Section 111A of the Employment Rights Act 1996, ensuring the discussion remains confidential and cannot be used in any tribunal claim.

In this article, we look at two potential resolutions a manager could consider when trying to resolve significant performance or behaviour concerns.

Scenario Example:

An employee has been underperforming in their role for the past six months.

They joined the Company three years ago with strong enthusiasm and consistently went above and beyond.

However, their quality of work and behaviour have gradually deteriorated to the point where their output is no longer satisfactory.

Alongside this decline, the employee has become disruptive, prompting complaints from colleagues.

Clients have also noticed changes and raised concerns with the Manager.

Protected Conversations: Key Management Considerations

When deciding how to have a protected conversation at work, the first step is to understand why the employee’s performance has deteriorated.

Managers should meet with the employee informally to highlight concerns and explore potential underlying causes.

In many cases, personal or motivational issues can be identified and addressed at this stage.

The Manager must also assess the employee’s length of service, as this affects their Employment Law rights.

In this scenario, the employee has more than two years’ service and therefore has the right to claim Unfair Dismissal or Constructive Dismissal.

Another important factor is determining whether the issue is wilful misconduct (Disciplinary) or lack of capability (Capability).

In this case, the employee has previously performed well, suggesting the behaviour is wilful.

Once the Manager understands the situation, they can consider whether a protected conversation at work is appropriate and, crucially, when to hold it.

Option 1: Hold a Protected Conversation

If the employee is not in the right frame of mind, a protected conversation is likely to fail and may weaken the employer’s position.

An employee who feels rejected or threatened may react by becoming defensive and trying to protect their job.

At this stage, the employee may:

• Feel the employer no longer values them
• Fear losing their job and income
• React emotionally, making them less receptive to discussion

As a result, any offer made by the employer may be viewed as unfair or insulting. If the offer is rejected, the employee will know their job is at risk, and their behaviour may worsen.

Option 2: Start the Alternative Process First

In this scenario, the better option would be to start the Disciplinary Process before attempting a protected conversation.

This communicates the concerns clearly, highlights required standards, and allows the employer to measure future performance.

This approach has two possible outcomes:

• The employee chooses to improve and engage positively
• The employee continues to underperform, providing further evidence for future action

Unless the behaviour constitutes Gross Misconduct, the employee is likely to receive a Written Warning or Final Written Warning.

Once this stage is complete, the employer will have a clearer picture of whether improvement is likely. This is often the best time to have a protected conversation, as the employee may now be more open to discussing a Settlement Agreement.

Always Seek HR Advice Before a Protected Conversation

Navigating how to have a protected conversation can be complex, and using the wrong process at the wrong time can lead to legal and operational risks.

It’s essential to seek professional HR support before starting any conversation or procedure.

This helps ensure you’re protecting your business while managing employee issues fairly and lawfully.

At HR Smart, Jon Rush and our team can support you in choosing the right approach and ensuring compliance with Employment Law.

Whether you need HR training or HR management support, email Jon at jon@hrsmartuk.com or call tel:01903754107 to learn more.