What is a protected conversation?

When is a conversation ‘protected’ in employment law?

If you have attended a confidential meeting with your employer, the terms ‘s111A’ and/or ‘protected conversation’ may have been used. Here, we explain the term, why employers use it, and when it will apply.

What is the difference between without prejudice and a protected conversation?

In 2013 a new statutory framework, s.111A(1) Employment Rights Act 1996, was introduced to operate alongside the without prejudice principle. ‘Pre-termination negotiations’, more commonly known as ‘protected conversations’, are intended to make it easier for employers to initiate settlement conversations with employees with less risk of those conversations being admissible in subsequent employment tribunal proceedings.  Protection from admissibility includes both the fact that pre-termination negotiations have taken place, and the details of those negotiations. Unlike the without prejudice rule there is no need for there to be an existing dispute between the parties in order for the statutory s.111A(1) rule and protection to apply (see our blog post: https://www.ergolaw.co.uk/blog/https/wwwergolawcouk/blog/what-does-without-prejudice-mean) 

Why do employers have a ‘protected conversation’ with employees?

In many cases, an employer will offer a settlement to an employee involved in a disciplinary or grievance procedure as an alternative to going through or completing the formal procedure. This is particularly the case where the employee has the minimum two years’ of service necessary to claim ordinary unfair dismissal.  It can be useful for the parties to explore the possibility of resolution through settlement at an early stage, and save time, costs and further strain on the employment relationship. In most cases, pre termination negotiations will result in an employee being paid a settlement payment in return for agreeing that their employment will end and waiving their employment related claims. The terms of the agreement reached will be recorded in a written settlement agreement.

Can an employer say anything they like during a protected conversation?

It is important to note that the protection applies only to ordinary unfair dismissal cases. Pre-termination negotiations cannot be referred to in evidence in an ordinary unfair dismissal case unless there has been "improper behaviour". Whether or not there has been "improper behaviour" would be for the employment tribunal to determine on the facts and circumstances of each case, but any form of bullying, harassment or undue pressure is likely to be found to be improper behaviour.

The Acas statutory Code of Practice on Settlement Agreements includes guidance on how to avoid "improper behaviour" with a helpful list of examples. The Code also sets out what employers and employees should and should not do when conducting pre-termination negotiations:  https://www.acas.org.uk/code-of-practice-settlement-agreements/html

What do I do if I am given a settlement agreement?

If you have been provided with a settlement offer or have engaged in negotiations relating to a settlement agreement and you are unsure whether they qualify for s111A(1) protection, we would be happy to advise on the matter. We support employees through the settlement agreement process and will do our best to make sure you are well informed and comfortable with the decisions you have to make and can negotiate on your behalf to secure the best possible outcome.

You can contact us at info@ergolaw.co.uk or on 0131 618 7007 to ensure that you are well informed and achieve the best possible advice in your circumstances.