Always look on the bright side…of life!

A creative approach to conflict - tips on negotiating within a protected conversation.

Employers and employees can have a ‘protected conversation’ at any time provided ACAS standards are followed (see www.acas.org) with all the usual benefits: tax free payments, avoiding legal costs…not to mention stress. But some employees have an unfortunate inclination to look back in anger when finding another job as quickly as possible is more valuable than a dispute in the long term.  Under basic legal principles an employee who has been treated unfairly has a duty to mitigate their loss by taking reasonable steps to find other work (Section 123 Employment Rights Act ’96).

At tribunal mitigation is only talked about at the end of a case…but I think it should be part of the discussion at the outset.

I find the following questions helpful when advising clients on settlement:

• Where do you see yourself in 2 years’ time?
• What’s the most important thing to you right now?
• How would a ‘dignified exit’ look to you? -this term covers much more than money and things that really matter…hurt, pride, reputation… a sense of justice (things which often drive the anger I’ve mentioned)
• Whatever the outcome what common interests do you share with your employer? The main one is how a departure is presented to others which can be set out in agreed announcement within the agreement

It’s also helpful to have ideas to hand tangible information about the employee’s job prospects such as:

• Reliable information about the job market. For example the KPMG and REC UK REPORT ON JOBS with comment and analysis by people in the know such as Neil Carberry, Chief Executive of REC who in December 2021 said ‘…the broader outlook is more positive for candidates, suggesting the labour market will remain tight with a premium on skills and development.’  

• Soundings from a specialist recruiter

• A search on the employee’s job title alongside their current place of work AND their home. This could be very motivating given recent trends in working from home. I searched ‘Accountancy jobs near me’ just now and one site alone had 1723 jobs!

• Details of any contribution to outplacement (career specialists)

• Ideas for references and announcements

Lawyers tend to hold these things back as a condition of a Settlement Agreement but I prefer to make offers for help finding work open and unconditional.

And don’t forget to ask if there’s anything else you can do to help! It’s a simple but powerful question which can head off debate about what ‘help’ should have been earlier on…