Redundancy: Off The Record Conversations & Section 111A Letters.

It’s a sad fact that in today’s uncertain economy, many businesses are looking at redundancies and people are losing their jobs.

At the moment, redundancy is the biggest threat that lots of people face but the loss of a job can come about for other reasons.

These delicate situations need handling carefully so it’s often a case of “testing the water”, and the employer may have an “off the record” conversation with an employee.

Listed below are some frequently asked questions surrounding an “off the record” discussion – these sort of conversations are increasing, with many companies making redundancies due to the on-going pandemic.

What is an “off the record” conversation?

An “off the record” conversation is a conversation that takes place between and employee and employer usually to discuss an exit package without any admission of liability: these can also be referred to as “without prejudice” or “protected” conversations.

Generally, the employer will inform the employee that if they are not interested in exploring an exit package at that time, the employer will continue with a formal process such as a redundancy process or a performance process.

Why is the conversation and letter “off the record” or without prejudice?

The conversation will occur on an “off the record” or “without prejudice” basis so as not to be admissible in a potential unfair dismissal claim that the employee may have.

However, these conversations still need some careful handling as there are circumstances when the conversation can be referred to in a subsequent claim. For example, an “off the record conversation” could be referred to in a discrimination claim.

What is a section 111A letter?

A section 111A letter is a letter some employers might issue their employee setting out what the key points they have discussed and offered during the “off the record” conversation.

Generally the letter will set out what package the employer is prepared to offer and the way in which they propose to execute the offer.

The letter will usually state that the exit package is subject to the employee and the employer signing a settlement agreement. It may also give a timeframe for the employee to consider the exit package option and let the employer know if they would like to take this further.

Can the employee tell anyone about the “off the record” conversation?

It should be made clear that employees should not disclose the discussion with their colleagues but that they can speak with their legal adviser about these conversations. It is usually the case that employees are allowed also to discuss the matter with their immediate family provided they, in turn, agree not to disclose it to others.

Following on from the “off the record” conversation what are the next steps?

If the employee is happy, in principle, to explore further the exit package the employer is offering they will then be issued with a settlement agreement. Further details on settlement agreements can be found here

What if I the employee is not happy with the offer?

The employee may attempt to negotiate an improved offer with the employer at this time. Alternatively, the employee may prefer to leave negotiation until they receive the settlement agreement.

It is possible for either side to withdraw from the offer at any time before a settlement agreement has been taken to an adviser and signed by both the employee and the employer.

What can Wilson Browne Solicitors do for you?

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We offer a free initial call, so you can tell us about your situation and we can do our best to put your mind at rest. There’s no obligation to instruct at a later date.

Call us today – we’re all the help you need.