Senior Executive Exits – a Case Study in How NOT to Handle a Protected Conversation

Will Clayton
07 June 2022

One of my essential top tips for employers when considering the exit of a high earning senior employee is to make sure you get the process off to a good start.

However, in a recent case before the West Midlands Employment Tribunal in which I successfully represented the claimant, the employer’s handling of its very first supposed protected conversation with my client was judged to be so woeful that it was of itself an unjustifiable repudiatory breach of the implied term of trust and confidence, which entitled my client to resign and regard herself as constructively dismissed.

My client was subsequently awarded approx. £95,000 in damages which included the maximum amount that the Judge was able to award for her unfair dismissal and wrongful dismissal.

So, just how did it go so badly wrong for the employer??…..

Well, in my opinion, the manager was far too over-zealous about sharing his end-game during what he thought would be a protected conversation. The manager clearly wanted my client out of his team and out of the business, and whilst he did not say as much in express terms, he didn’t make it very hard for my client (or for the Employment Judge) to read between the lines that whether my client accepted the company’s settlement offer, or not, he was always going to find a way to remove her.

From there on, it was a case of one calamitous improper comment after another:

–         Beginning by revealing plans to ‘restructure’ my client’s team, the manager was unkind enough to tell my client that “knowing you as I do….your skill set will not sit within that new structure”(indicating a pre-judged redundancy selection exercise);

–         He went on, “I think that it could lead ultimately to performance management” (his colloquialism for dismissing my client for performance reasons when her performance had not been an issue at any time in the previous 5 years..);

–         And “I am trying to offer you a way out of this that allow you to leave with dignity” (in other words, if she rejected the offer, my client would be subjected to an undignified departure);

–         Not satisfied with leaving things there, and without reference to any particular evidence or potential charges, the manager told my client that he could take “disciplinary action” which would see her leaving the business with “no money”.

At no point during the ET case was any evidence produced to suggest that my client had committed any act of misconduct whatsoever. The sole purpose of this comment was to pressure my client into accepting the company’s (poor) offer.

It was also a salutary lesson for the employer in this case that they thought, wrongly, that they could keep evidence of the alleged protected conversation from the Employment Judge simply because the manager also uttered the words “without prejudice” at the outset.

The Judge had no difficulty finding that his statements were not without prejudice, as there was no pre-existing legal dispute between the company and the employee before the conversation began.

Likewise, the conversation was not “protected” in law under section 111A of the Employment Rights Act 1996 either, because of the manager’s “improper behaviour” (the inappropriate statements referred to above) which meant that the details of the conversation were wholly admissible in evidence at the full hearing of my client’s case.

If your business may need to make personnel changes at a senior level in the near future and would like to have a conversation about how I might help you, please do not hesitate to contact me at


Or call: 07563 145981

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