Protected Conversations: A Guide for Employers
Sometimes an employer wants to explore an agreed exit rather than continue a difficult employment process. A protected conversation may be an option, but it is not a magic phrase that makes everything said in the meeting confidential or legally untouchable.
At a Glance: Section 111A Protected Negotiations
- Scope of Protection: Shields pre-termination negotiations solely from ordinary unfair dismissal claims in employment tribunals.
- Key Legal Exceptions: Does not protect against claims involving discrimination, whistleblowing, or automatically unfair dismissal.
- Improper Behaviour Risk: Putting undue pressure or issuing ultimatums waives confidentiality protections under tribunal scrutiny.
- 10-Day ACAS Standard: Employees should be given at least 10 calendar days to consider written settlement terms and obtain legal advice.
What is a protected conversation?
Section 111A of the Employment Rights Act 1996 can make certain pre termination negotiations inadmissible in ordinary unfair dismissal proceedings, even where there is no existing dispute. The protection has important limits, so employers should not assume that every discussion about leaving is protected.
When might an employer consider one?
Examples include a difficult performance situation, a relationship breakdown or a proposed mutually agreed departure. The employer should first understand the underlying employment issue and what a fair formal process would otherwise involve.
Protected Conversation Roadmap: Section 111A vs Without Prejudice Protocol
What does 'without prejudice' mean?
Without prejudice protection is different. It generally depends on there being an existing dispute and a genuine attempt to settle it. Labelling an email 'without prejudice' does not automatically make it protected. Section 111A and without prejudice rules may overlap, but they are not interchangeable.
Section 111A Protection
No existing dispute required. Allows employers to initiate pre-termination talks out of the blue.
Coverage: Exclusively protects against ordinary unfair dismissal claims.Without Prejudice Principle
Requires an active dispute (e.g. raised grievance, tribunal filing, or formal deadlock).
Coverage: Broader common law protection covering all types of claims.What are the limits of section 111A?
The statutory protection relates to ordinary unfair dismissal claims, not all tribunal claims. It does not generally shield discussions from discrimination or automatically unfair dismissal claims. Protection may also be lost where there is improper behaviour, to the extent the tribunal considers just.
Can I tell the employee they must accept?
No. Avoid threats, intimidation or suggesting dismissal is inevitable if they reject an offer. The ACAS Code of Practice on Settlement Agreements recommends allowing a reasonable period to consider formal written terms, with ten calendar days as a general minimum unless the parties agree otherwise.
What should the conversation cover?
Explain that you are exploring a voluntary option, not announcing a predetermined dismissal. Set out the proposed terms at an appropriate level, give the employee space to consider them and explain that any agreement would need to be documented correctly. Keep a clear distinction between the settlement proposal and any ongoing formal HR process.
Do I need a settlement agreement?
If the aim is a legally binding waiver of specified employment claims, a compliant settlement agreement has statutory requirements, including independent advice for the employee. An informal handshake or signed letter will not necessarily achieve that.
What if the employee says no?
A rejected proposal does not itself end employment. You may need to continue managing the underlying issue fairly through the appropriate process. Avoid retaliating against the employee for declining a settlement proposal.
⚖️ What if the employee has raised discrimination or whistleblowing concerns?
This is a higher risk scenario. Do not assume section 111A protects the discussion. Obtain tailored advice before making an offer or conducting a meeting.
How Nectar HR can help
Nectar HR supports employers with settlement strategy, protected conversation preparation, meeting support and the HR processes that may continue if no agreement is reached. We can work alongside employment solicitors where legal drafting or specialist advice is required.
Got an employee problem?
Nectar HR supports employers with settlement strategy, protected conversation preparation, meeting support and the HR processes that may continue if no agreement is reached. We can work alongside employment solicitors where legal drafting or specialist advice is required.
You don't have to navigate settlement talks alone. Tell us what's happened.
Tell Us What's Happened
Share a quick summary below and an experienced UK HR adviser will contact you confidentially.