Protected Conversations

Protected conversations allow employers to have confidential discussions about ending employment without fear of those discussions being used in unfair dismissal claims.

What Is a Protected Conversation?

Legal Basis

Section 111A of the Employment Rights Act 1996 allows:

• Confidential discussions about termination
• Pre-termination negotiations
• Offers to end employment with payment

These discussions cannot be used as evidence in ordinary unfair dismissal claims.

Purpose

Protected conversations allow employers to:

• Propose exits without starting formal process
• Negotiate settlement agreements
• Have honest discussions about employment ending
• Avoid costly and lengthy disputes

Key Features

What's Protected

Protected	Not Protected
Offer to end employment	How offer was made (if improper)
Terms discussed	Behaviour during conversation
Negotiation details	Pre-existing disputes
Settlement proposals	Discrimination allegations

Requirements

For protection to apply:

1. There must be an offer to end employment
2. No improper behaviour during the conversation
3. The claim must be ordinary unfair dismissal
4. Discussions must relate to termination

When Protection Applies

Ordinary Unfair Dismissal Only

Protected conversations shield against:

• Ordinary unfair dismissal claims
• Claims where only unfair dismissal is alleged

Doesn't Apply To

Claim Type	Protection?
Discrimination	No
Whistleblowing	No
Automatically unfair dismissal	No
Breach of contract	No
Wrongful dismissal	No

Practical Impact

If employee has potential discrimination claim:

• Protected conversation loses protection
• Everything discussed could be evidence
• Employer takes significant risk

Improper Behaviour

What Removes Protection

Protection lost if there's "improper behaviour," including:

• Harassment, bullying, intimidation
• Victimisation
• Putting undue pressure on employee
• Not allowing reasonable time to consider
• Threatening if offer refused
• Discrimination

Examples of Improper Behaviour

Improper	Proper
"Accept or we'll sack you tomorrow"	"Take time to consider the offer"
"You have no choice"	"This is one option available"
"No one will believe you"	"You may want to take legal advice"
"Your performance is terrible" (if untrue)	Factual description of situation

ACAS Code Guidance

The ACAS Code on Settlement Agreements provides guidance on:

• How to conduct conversations properly
• What constitutes improper behaviour
• Good practice for negotiations

Initiating a Protected Conversation

When to Use

Employers might initiate when:

• Relationship has broken down
• Performance issues exist
• Restructuring is needed
• Mutual exit would be beneficial
• Before lengthy formal processes

How to Start

Good practice:

1. Invite employee to meeting
2. Can mention it's confidential discussion
3. Start by explaining the context
4. Make clear it's an offer, not decision
5. Give time to consider
6. Suggest they take legal advice

What to Say

Example opening:

"I'd like to have a confidential discussion with you about your employment. Nothing we discuss can be used in any unfair dismissal claim. This is an opportunity to explore whether there's a mutually agreeable way forward, including potentially a settlement agreement."

Employee Rights

No Obligation to Engage

Employees can:

• Refuse to have the conversation
• Leave at any time
• Ignore any offer made
• Seek advice before responding

Cannot Be Penalised

Refusing to engage cannot:

• Be used against you
• Form part of dismissal decision
• Be evidence in tribunal
• Affect other entitlements

Right to Consider

Employees should be given:

• Reasonable time to consider (usually at least 10 days)
• Opportunity to take legal advice
• Time to ask questions
• Written summary of offer

What Can Be Discussed

Typical Topics

• Exit package (money offered)
• Notice arrangements
• Reference wording
• Confidentiality terms
• Settlement agreement terms
• Tax treatment

Settlement Amounts

Common elements:

• Payment in lieu of notice
• Ex gratia payment
• Contribution to legal fees
• Outplacement support
• Bonus or commission

Difference from Without Prejudice

Without Prejudice

Without Prejudice	Protected Conversation
Requires existing dispute	No dispute needed
Applies to all claims	Only ordinary unfair dismissal
Common law rule	Statutory provision
Both parties know status	Can be one-sided initially

Which to Use?

• Pre-dispute: Protected conversation
• Post-dispute: Without prejudice
• Both if possible: Extra protection

Documenting Protected Conversations

Written Records

Keep notes of:

• Date and attendees
• What was offered
• How offer was made
• Time given to consider
• That no improper behaviour occurred

Written Offers

Often wise to:

• Follow up in writing
• Mark as "protected conversation"
• State terms clearly
• Give deadline to respond
• Explain process

If You're in a Protected Conversation

As an Employee

1. Stay calm - it's a negotiation
2. Take notes - record what's said
3. Don't commit - ask for time
4. Get advice - speak to a lawyer
5. Consider options - what are alternatives?
6. Know your rights - you can refuse

Questions to Ask

• What is the full offer?
• What happens if I refuse?
• Can I have this in writing?
• How long do I have to decide?
• Will you pay for legal advice?

Risks and Limitations

For Employers

Risks include:

• Employee may have discrimination claim (no protection)
• Conversation could be evidence in other claims
• Employee may feel pressured (improper behaviour)
• May damage relationship if declined

For Employees

Consider:

• What are you giving up?
• Is the offer fair?
• What would happen if you stayed?
• Do you have other claims?
• What about references?

Best Practice

For Employers

• Ensure no discrimination issues
• Train managers on proper conduct
• Give adequate time
• Put offers in writing
• Don't pressure
• Suggest legal advice

For Employees

• Take time to consider
• Get independent advice
• Don't feel pressured
• Consider all options
• Negotiate if appropriate
• Know your alternatives